[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2005 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          32


          Parts 191 to 399

                         Revised as of July 1, 2005


          National Defense
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2005
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 32:
    Subtitle A--Department of Defense (Continued)
          Chapter I--Office of the Secretary of Defense 
          (Continued)                                                3
  Finding Aids:
      Table of CFR Titles and Chapters........................    1089
      Alphabetical List of Agencies Appearing in the CFR......    1107
      List of CFR Sections Affected...........................    1117

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 32 CFR 191.1 refers 
                       to title 32, part 191, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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EFFECTIVE AND EXPIRATION DATES

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
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CFR INDEXES AND TABULAR GUIDES

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    The Federal Register Index is issued monthly in cumulative form. 
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the revision dates of the 50 CFR titles.

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[[Page vii]]

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2005.

[[Page ix]]



                               THIS TITLE

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

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

    For this volume, Carol A. Conroy was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                 (This volume contains parts 191 to 399)

  --------------------------------------------------------------------
                                                                    Part

              SUBTITLE A--Department of Defense (Continued)

Chapter I--Office of the Secretary of Defense (Continued)...         191

[[Page 3]]

              Subtitle A--Department of Defense (Continued)

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        CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)




  --------------------------------------------------------------------

                       SUBCHAPTER M--MISCELLANEOUS
Part                                                                Page
191             The DOD Civilian Equal Employment 
                    Opportunity (EEO) Program...............          11
192             Equal opportunity in off-base housing.......          18
193             Highways for national defense...............          26
194             [Reserved]
195             Nondiscrimination in Federally assisted 
                    programs of the Department of Defense--
                    Effectuation of Title VI of the Civil 
                    Rights Act of 1964......................          28
196             Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..          38
199             Civilian Health and Medical Program of the 
                    Uniformed Services (CHAMPUS)............          55
203             Technical Assistance for Public 
                    Participation (TAPP) in defense 
                    environmental restoration activities....         352
204             User charges................................         362
205             End use certificates (EUCs).................         369
206             National Security Education Program (NSEP) 
                    grants to institutions of higher 
                    education...............................         371
207             Implementation of section 740 of the Wendell 
                    H. Ford Aviation Investment and Reform 
                    Act for the 21st century as amended by 
                    section 1051 of the National Defense 
                    Authorization Act for Fiscal Year 2003..         377
208-209         [Reserved]
210             Enforcement of State traffic laws on DoD 
                    installations...........................         381
211             DoD Foreign Tax Relief Program..............         382
212             Private organizations on DoD installations..         385
215             Employment of military resources in the 
                    event of civil disturbances.............         388

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216             Military Recruiting and Reserve Officer 
                    Training Corps Program access to 
                    institutions of higher education........         394
218             Guidance for the determination and reporting 
                    of nuclear radiation dose for DoD 
                    participants in the atmospheric nuclear 
                    test program (1945-1962)................         400
219             Protection of human subjects................         405
220             Collection from third party payers of 
                    reasonable charges for healthcare 
                    services................................         416
221             Department of Defense participation in the 
                    National Practitioner Data Bank (NPDB)..         429
223             Department of Defense Unclassified 
                    Controlled Nuclear Information (DoD 
                    UCNI)...................................         430
224             DoD Committee Management Program............         438
226             Shelter for the homeless....................         439
228             Security Protective Force...................         441
229             Protection of archaeological resources: 
                    uniform regulations.....................         444
230             Financial institutions on DOD installations.         457
231             Procedures governing banks, credit unions 
                    and other financial institutions on DOD 
                    installations...........................         460
234             Conduct on the Pentagon Reservation.........         493
235             Sale or rental of sexually explicit material 
                    on DoD property.........................         498
237a            Public affairs liaison with industry........         499
238             Armed Forces community relations............         502
239             Homeowners Assistance Program--application 
                    processing..............................         525
240             Criteria and procedures for providing 
                    assistance to local educational agencies         534
242             Admission policies and procedures for the 
                    School of Medicine, Uniformed Services 
                    University of the Health Sciences.......         537
242a            Public meeting procedures of the Board of 
                    Regents, Uniformed Services University 
                    of the Health Sciences..................         542
242b            General procedures and delegations of the 
                    Board of Regents of the Uniformed 
                    Services University of the Health 
                    Sciences................................         546
243             Intergovernmental coordination of DoD 
                    Federal development programs and 
                    activities..............................         551
245             Plan for the security control of air traffic 
                    and air navigation aids (short title: 
                    SCATANA)................................         552
246             Stars and Stripes (S&S) newspaper and 
                    business operations.....................         564
247             Department of Defense newspapers, magazines 
                    and Civilian Enterprise publications....         577

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248             Department of Defense periodicals...........         595
249             Presentation of DoD-related scientific and 
                    technical papers at meetings............         597
250             Withholding of unclassified technical data 
                    from public disclosure..................         601
252             Department of Defense offshore military 
                    activities program......................         610
253             Assignment of American National Red Cross 
                    and United Service Organizations, Inc., 
                    employees to duty with the Military 
                    Services................................         612
256             Air installations compatible use zones......         613
257             Acceptance of service of process............         621
258             Cooperation with allies in research and 
                    development of defense equipment........         622
259             Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally-assisted programs.............         624
261             Armed Services military club and package 
                    stores..................................         624
263             Traffic and vehicle control on certain 
                    Defense Mapping Agency sites............         625
264             International interchange of patent rights 
                    and technical information...............         627
266             Audits of State and local governments, 
                    institutions of higher education, and 
                    other nonprofit institutions............         630
268             Collecting and reporting of foreign 
                    indebtedness within the Department of 
                    Defense.................................         632
269             Civil monetary penalty inflation adjustment.         635
270             Compensation of certain former operatives 
                    incarcerated by the Democratic Republic 
                    of Vietnam..............................         637
271             Obtaining information from financial 
                    institutions............................         649
272             Administration and support of basic research 
                    by the DoD..............................         651
274             Regulations governing competitive bidding on 
                    U.S. Government guaranteed military 
                    export loan agreements..................         652
275             Obtaining information from financial 
                    institutions: Rights to Financial 
                    Privacy Act of 1978.....................         654
277             Implementation of the Program Fraud Civil 
                    Remedies Act............................         662
282             Procedures for settling personnel and 
                    general claims and processing advance 
                    decision requests.......................         677
            SUBCHAPTER N--FREEDOM OF INFORMATION ACT PROGRAM
285             DOD Freedom of Information Act (FOIA) 
                    Program.................................         686
286             DoD Freedom of Information Act Program 
                    Regulation..............................         687

[[Page 8]]

286h            Release of Acquisition-Related Information..         741
287             Defense Information Systems Agency Freedom 
                    of Information Act Program..............         744
290             Defense Contract Audit Agency (DCAA) Freedom 
                    of Information Act Program..............         746
291             Defense Nuclear Agency (DNA) Freedom of 
                    Information Act Program.................         761
292             Defense Intelligence Agency (DIA) Freedom of 
                    Information Act.........................         775
293             National Imagery Mapping Agency (NIMA) 
                    Freedom of Information Act Program......         781
295             Office of the Inspector General, Freedom of 
                    Information Act Program.................         785
296             National Reconnaissance Office Freedom of 
                    Information Act Program regulation......         806
298             Defense Investigative Service (DIS) Freedom 
                    of Information Act Program..............         808
299             National Security Agency/Central Security 
                    Service (NSA/CSS) Freedom of Information 
                    Act Program.............................         810
                      SUBCHAPTER O--PRIVACY PROGRAM
310             DoD Privacy Program.........................         821
311             OSD Privacy Program.........................         873
312             Office of the Inspector General (OIG) 
                    Privacy Program.........................         886
313             The Chairman of the Joint Chiefs of Staff 
                    and the Joint Staff Privacy Program.....         894
314             Defense Advanced Research Projects Agency, 
                    Privacy Act of 1974.....................         894
315             Uniformed Services University of Health 
                    Sciences, Privacy Act of 1974...........         894
316             Defense Information Systems Agency Privacy 
                    Program.................................         894
317             DCAA Privacy Act Program....................         899
318             Defense Threat Reduction Agency Privacy 
                    Program.................................         902
319             Defense Intelligence Agency Privacy Program.         912
320             National Geospatial Intelligence Agency 
                    Privacy.................................         916
321             Defense Security Service Privacy Program....         923
322             National Security Agency/Central Security 
                    Services Privacy Act Program............         935
323             Defense Logistics Agency Privacy Program....         961
324             DFAS Privacy Act Program....................         987
326             National Reconnaissance Office Privacy Act 
                    Program.................................         995

[[Page 9]]

327             Defense Commissary Agency Privacy Act 
                    Program.................................        1015
                 SUBCHAPTER P--OBTAINING DOD INFORMATION
336             Publications of proposed and adopted 
                    regulations affecting the public........        1030
337             Availability of DoD directives, DoD 
                    instructions, DoD publications, and 
                    changes.................................        1033
338             Availability to the public of Defense 
                    Nuclear Agency (DNA) instructions and 
                    changes thereto.........................        1033
                         SUBCHAPTER Q [RESERVED]
                  SUBCHAPTER R--ORGANIZATIONAL CHARTERS
343             Under Secretary of Defense for Personnel and 
                    Readiness (USD(P&R))....................        1035
344             Assistant Secretary of Defense for Reserve 
                    Affairs (ASD(RA)).......................        1037
345             Department of Defense section 6 schools.....        1039
346             Department of Defense education activity....        1042
347             Department of Defense Dependents Schools 
                    (DoDDS).................................        1044
352a            Defense Finance and Accounting Service 
                    (DFAS)..................................        1049
362             Defense Information Systems Agency (DISA)...        1052
367             Assistant Secretary of Defense for Health 
                    Affairs.................................        1060
371             Defense Prisoner of War/Missing in Action 
                    Office (DPMO)...........................        1062
378             Assistant to the Secretary of Defense for 
                    Intelligence Oversight (ATSD(IO)).......        1063
383a            Defense Commissary Agency (DeCA)............        1065
388             Ballistic Missile Defense Organization 
                    (BMDO)..................................        1069
390             Armed Forces Radiobiology Research Institute        1074
392             Director of Small and Disadvantaged Business 
                    Utilization.............................        1076
395             Defense Legal Services Agency...............        1078
398             Defense Logistics Agency (DLA)..............        1080
399             [Reserved]

[[Page 11]]



                       SUBCHAPTER M_MISCELLANEOUS





PART 191_THE DOD CIVILIAN EQUAL EMPLOYMENT OPPORTUNITY (EEO) PROGRAM
--Table of Contents




Sec.
191.1 Purpose.
191.2 Applicability and scope.
191.3 Definitions.
191.4 Policy.
191.5 Responsibilities.
191.6 Procedures.
191.7 Civilian EEO program staff.
191.8 Defense equal opportunity council and EEO boards.
191.9 Information requirements.
191.10 Effective date.

    Authority: 5 U.S.C. 301, 10 U.S.C. 113.

    Source: 53 FR 30990, Aug. 17, 1988, unless otherwise noted.



Sec. 191.1  Purpose.

    This part:
    (a) Implements the DoD Humans Goals Charter; 29 U.S.C. 791, 792, 
793, and 795; guidance from the Equal Employment Opportunity Commission 
(EEOC); guidance from the Office of Personnel Management (OPM); 
Executive Order 11830; General Services Administration Order ADM 
5420.71A; Executive Orders 11141; 11246 Part II, 11375, and 12086; 
Office of Management and Budget (OMB) Circular No. A-11; 42 U.S.C. 
2000E-16; Executive Order 11478; 38 U.S.C. 2014; 29 U.S.C. 631(b) and 
633a; 5 U.S.C. chapters 43 and 72; Secretary of Defense Policy on Sexual 
Harassment, July 17, 1981; Assistant Secretary of Defense (Manpower, 
Reserve Affairs and Logistics) Multiple Addressee Memorandum, August 16, 
1981; and 29 U.S.C. 206(d) by establishing the Civilian Equal Employment 
Opportunity (EEO) Program, to include affirmative action programs, 
consistent with guidance from the Equal Employment Opportunity 
Commission (EEOC), Office of Personnel Management (OPM), and the DoD 
Human Goals Charter.
    (b) Consolidates in a single document provisions of Secretary of 
Defense Multiple Addressee Memorandum, June 23, 1981; DoD Directive 
1100.11, DoD Directive 1450.1, DoD Directive 5120.46, and DoD Directive 
1100.15, therefore cancelling each document.
    (c) Authorizes, as an integral part of the Civilian EEO Program, the 
establishment of Special Emphasis Programs (SEPs) entitled the Federal 
Women's Program (FWP), the Hispanic Employment Program (HEP), and the 
Program for People with Disabilities (PPD), the Asian/Pacific Islander 
Employment Program (AEP), the American Indian/Alaskan Native Employment 
Program (AIEP), and the Black Employment Program (BEP).
    (d) Establishes the Defense Equal Opportunity Council (DEOC), the 
Civilian EEO Review Board, the SEP Boards.
    (e) Authorizes the issuance of DoD Instructions and Manuals to 
implement this part and guidance from standard-setting agencies such as 
EEOC and OPM, consistent with DoD 5025.1-M.

[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991; 
57 FR 35755, Aug. 11, 1992]



Sec. 191.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD) and 
activities supported administratively by OSD, the Military Departments, 
the Organization of the Joint Chiefs of Staff (as an element of the OSD 
for the purposes of this program), the Unified and Specified Commands, 
the Defense Agencies, the Army and Air Force Exchange Service, the 
National Guard Bureau, the Uniformed Services University of the Health 
Sciences, the Office of Civilian Health and Medical Programs of the 
Uniformed Services, and the DoD Dependents Schools (hereafter referred 
to collectively as ``DoD Components'').
    (b) Applies worldwide to all civilian employees and applicants for 
civilian employment within the Department of Defense in appropriated and 
non-appropriated fund positions.
    (c) Does not apply to military personnel, for whom equal opportunity 
is covered by DoD Directive 1350.2 \1\.
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 22161.

---------------------------------------------------------------------------

[[Page 12]]

    (d) Covers Federal employment issues under section 504 of the 
Rehabilitation Act of 1973, as amended, even though DoD Directive 1020.1 
\2\ implements section 504 with respect to programs conducted and 
assisted by the Department of Defense. The standards established under 
section 501 of the Rehabilitation Act of 1973, as amended, (29 U.S.C. 
791, 792, 793, and 795), are to be applied under section 504 of the Act 
with respect to civilian employees and applicants for civilian 
employment in Federal Agencies.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 191.2(c).

[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991]



Sec. 191.3  Definitions.

    Affirmative action. A tool to achieve equal employment opportunity. 
A program of self-analysis, problem identification, data collection, 
policy statements, reporting systems, and elimination of discriminatory 
policies and practices, past and present.
    Age. A prohibited basis discrimination. For purposes of this 
Directive, persons protected under age discrimination provisions are 
those 40 years of age or older, except when a maximum age requirement 
has been established by statute or the OPM. Aliens employed outside the 
limits of the United States are not covered by this definition.
    Discrimination. Illegal treatment of a person or group based on 
race, color, national origin, religion, sex, age, or disability.
    Equal Employment Opportunity (EEO). The right of all persons to work 
and advance on the basis of merit, ability, and potential, free from 
social, personal, or institutional barriers of prejudice and 
discrimination.
    Minorities. All persons classified as black (not of Hispanic 
origin), Hispanic, Asian or Pacific Islander, and American Indian or 
Alaskan Native.
    National origin. A prohibited basis for discrimination. An 
individual's place of origin or his or her ancestor's place of origin or 
the possession of physical, cultural, or linguistic characteristics of a 
national origin group.
    People with disabilities. People who have physical or mental 
impairments that substantially limits one or more major life activities, 
has a record of such impairment, or is regarded as having such an 
impairment. For purposes of this part, such term does not include any 
individual who is an alcoholic or drug abuser and whose current use of 
alcohol or drugs prevents such individual from performing the duties of 
the job in question, or whose employment, by reason of such current 
alcohol or drug abuse, would constitute a direct threat to property or 
to the safety of others. As used in this paragraph:
    (a) Physical or mental impairment. Any physiological disorder or 
condition, cosmetic disfigurement, or anatomical loss affecting one or 
more of the following body systems: neurological; musculoskeletal and 
special sense organs; respiratory, including speech organs; 
cardiovascular; reproductive; digestive; genitourinary; hemic and 
lymphatic; skin; and endocrine; or any mental or psychological disorder, 
such as mental retardation, organic brain syndrome, emotional or mental 
illness, and specific learning disabilities.
    (b) Major life activities. Functions such as caring for one's self, 
performing manual tasks, walking, seeing, hearing, speaking, breathing, 
learning, and working.
    (c) Has a record of such impairment. Has a history of, or has been 
misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (d) Is regarded as having an impairment. Has:
    (1) A physical or mental impairment that does not substantially 
limit major life activities but is treated by an employer as 
constituting such a limitation;
    (2) A physical or mental impairment that substantially limits major 
life activities only as a result of the attitude of others toward such 
impairment; or
    (3) None of the impairments defined above but is treated by an 
employer as having an impairment.
    Race. A prohibited basis for discrimination. For purposes of this 
part, all persons are classified as black (not of Hispanic origin), 
Hispanic, Asian or Pacific Islander, American Indian or Alaskan Native, 
and White, as follows:

[[Page 13]]

    (a) Black (not of Hispanic origin). A person having origins in any 
of the black racial groups of Africa.
    (b) Hispanic origin. A person of Mexican, Puerto Rican, Cuban, 
Central or South American or other Spanish culture or origin regardless 
of race.
    (c) Asian or Pacific Islander. A person having origin in any of the 
original peoples of the Far East, Southeast Asia, the Indian 
subcontinent, or the Pacific Islands. This area includes, for example, 
China, India, Japan, Korea, the Philippine Islands, and Samoa.
    (d) American Indian or Alaskan Native. A person having origins in 
any of the original peoples of North America, and who maintains cultural 
identification through tribal affiliation or community recognition.
    (e) White. A person having origins in any of the original peoples of 
Europe, North Africa, or the Middle East.
    Religion. Traditional systems of religious belief and moral or 
ethical beliefs as to what is right and wrong that are sincerely held 
with the strength of traditional religious views. The phrase ``religious 
practice'' as used in this part includes both religious observances and 
practices. DoD Components are expected to accommodate an employee's 
religious practices unless doing so causes undue hardship on the conduct 
of the Component's business.
    Sexual Harassment. A form of sex discrimination that involves 
unwelcomed sexual advances, requests for sexual favors, and other verbal 
or physical conduct of a sexual nature when:
    (a) Submission to or rejection of such conduct is made either 
explicitly or implicitly a term or condition of a person's job, pay, or 
career; or
    (b) Submission to or rejection of such conduct by a person is used 
as a basis for career or employment decisions affecting that person, or
    (c) Such conduct interferes with an individual's performance or 
creates an intimidating, hostile, or offensive environment.

Any person in a supervisory or command position who uses or condones 
implicit or explicit sexual behavior to control, influence, or affect 
the career, pay, or job of a military member of civilian employee is 
engaging in sexual harassment. Similarly, any military member of 
civilian employee who makes deliberate or repeated unwelcomed verbal 
comments, gestures, or physical contact of a sexual nature is also 
engaging in sexual harassment.
    Special Emphasis Program (SEPs). Programs established as integral 
parts of the overall EEO program to enhance the employment, training, 
and advancement of a particular minority group, women, or people with 
disabilities.
    Standard-setting agencies. Non-DoD Federal Agencies authorized to 
establish Federal Government-wide EEO policy or program requirements. 
The term includes the EEOC; OPM: DoL, Office of Federal Contract 
Compliance Programs (OFCCP); and OMB.

[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989; 
57 FR 35755, Aug. 11, 1992]



Sec. 191.4  Policy.

    It is DoD Policy to:
    (a) Recognize equal opportunity programs, including affirmative 
action programs, as essential elements of readiness that are vital to 
the accomplishment of the DoD national security mission. Equal 
employment opportunity is the objective of affirmative action programs.
    (b) Develop and implement affirmative action programs to achieve the 
objective of a civilian work force in which the representation of 
minorities, women, and people with disabilities at all grade levels, in 
every occupational series, and in every major organization element is 
commensurate with the representation specified in EEOC and OPM guidance. 
Such programs, which shall be designed to identify, recruit, and select 
qualified personnel, shall be coordinated with the cognizant legal 
offices.
    (c) Ensure that Civilian EEO Program activities for minorities, 
women, and people with disabilities are integrated fully into the 
civilian personnel management system.
    (d) Assess progress in DoD Component programs in accordance with the 
affirmative action goals of the Department of Defense.

[[Page 14]]

    (e) Prohibit discrimination based on race, color, religion, sex, 
national origin, mental or physical disability, or age.
    (f) Eliminate barriers and practices that impede equal employment 
opportunity for all employees and applicants for employment, including 
sexual harassment in the work force and at work sites and architectural, 
transportation, and other barriers affecting people with disabilities.

[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989; 
57 FR 35756, Aug. 11, 1992]



Sec. 191.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Force Management and 
Personnel (ASD(FM&P)), or designee, shall:
    (1) Represent the Secretary of Defense in all matters related to the 
DoD Civilian EEO Program, consistent with DoD Directive 5124.2 \3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------

    (2) Establish and chair the DEOC.
    (3) Establish a Civilian EEO Review Board.
    (4) Develop policy and provide program oversight for the Civilian 
EEO Program.
    (5) Ensure full implementation of this part, monitor progress of 
affirmative action program elements, and advise the Secretary of Defense 
on matters relating to the Civilian EEO Program.
    (6) Ensure that realistic goals that provide for significant 
continuing increases in the percentages of minorities, women, and people 
with disabilities in entry, middle, and higher grade positions in all 
organizations and occupations are set and accomplished until the overall 
DoD objective is met and sustained.
    (7) Prepare a new DoD Human Goals Charter each time a new Secretary 
of Defense is appointed.
    (8) Ensure fair, impartial, and timely investigation and resolution 
of complaints of discrimination in employment, including complaints of 
sexual harassment.
    (9) Establish DoD SEPs for the FWP, HEP, HIP, AEP, AIEP, and BEP.
    (10) Establish DoD Special Emphasis Program Boards to assist with 
implementation of SEPs under this part.
    (11) Establish DoD Civilian EEO Award Programs to provide for the 
annual issuance of Secretary of Defense Certificates of Merit to DoD 
Components and individuals for outstanding achievement in the major 
areas covered by this part, and to review all awards and management 
training programs within the Department of Defense to ensure that 
minorities, women, and people with disabilities receive full and fair 
consideration consistent with their qualifications and the applicable 
program criteria.
    (12) Issue implementing instructions and other documents, as 
required, to achieve the goals of the DoD Civilian EEO Program and to 
provide policy direction and overall guidance to the DoD Components.
    (13) Represent the Department of Defense on programmatic EEO matters 
with EEOC, OPM, the Department of Justice, other Federal Agencies, and 
Congress.
    (14) Represent the Department of Defense on the Interagency 
Committee on Handicapped Employees under E.O. 11830, as amended, and the 
Council on Accessible Technology under General Services Administration 
Order ADM 5420.71A.
    (15) Represent the Department of Defense at meetings and conferences 
of non-Federal organizations concerned with EEO programs, and coordinate 
DoD support of such organizations' activities with the Assistant 
Secretary of Defense (Public Affairs) and with DoD General Counsel in 
accordance with DoD Directive 5410.18 \4\, DoD Instruction 5410.19 \5\, 
DoD Directive 5500.2 \6\, and DoD Directive 5500.7 \7\.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 191.2(c).
    \5\ See footnote 1 to Sec. 191.2(c).
    \6\ See footnote 1 to Sec. 191.2(c).
    \7\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------

    (16) Serve as the DoD liaison with the Office of Federal Contract 
Compliance Programs (OFCCP), Department of Labor (DoL), for the purpose 
of providing contract information, forwarding complaints of 
discrimination filed against DoD contractors, and implementing 
administrative sanctions imposed against DoD contractors for

[[Page 15]]

violations of E.O. 11141; E.O. 11246; as amended by E.O. 11375, E.O. 
12088; and DoL implementing regulations.
    (17) Ensure that the DoD FAR Supplement contains appropriate 
contract provisions for EEO for Government contractors and 
subcontractors under Executive Orders 11141, 11246 Part II, 11375, and 
12086; Section 402 of the Vietnam Era Veterans' Readjustment Assistance 
Act of 1974, as amended; Section 503 of the Rehabilitation Act of 1973, 
as amended; and DoL implementing regulations.
    (b) The Heads of DoD Components, or their designees, shall:
    (1) Ensure that all EEO policies are disseminated widely and that 
they are understood and implemented at all levels within their 
Components.
    (2) Ensure that their Components comply with EEOC and OPM guidance 
and this part and that minorities, women, and people with disabilities 
receive full and fair consideration for civilian employment in all grade 
levels, occupations, and major organizations, with special emphasis on 
mid-level and higher grades and executive-level jobs, including the 
Senior Executive Service (SES) and SES candidate pools.
    (3) Treat equal opportunity and affirmative action programs as 
essential elements of readiness that are vital to accomplishment of the 
national security mission.
    (4) Designate a Director of Civilian Equal Opportunity and allocate 
sufficient staff and other resources to ensure a viable EEO program 
under this Directive. This includes assignment of staff to be 
responsible for EEO and affirmative action programs generally and SEP 
Managers for the SEPs established under this part at the Component 
level.
    (5) Establish DoD SEPs, for the FWP, HEP, PPD, AEP, AIEP, and BEP at 
Headquarters level and at all field activities levels unless exemptions 
are granted to field activities. Authority to grant exceptions to field 
activities of DoD Components is delegated to the Component Heads who, in 
turn, may redelegate this authority.
    (6) Require that EEO be included in critical elements in the 
performance appraisals of all supervisors, managers, and other Component 
personnel, military and civilian, with EEO responsibilities.
    (7) Ensure fair, impartial, and timely investigation and resolution 
of complaints of discrimination in employment, including complaints of 
sexual harassment.
    (8) Set realistic Component goals and motivate subordinate managers 
and supervisors to set and meet their own goals until overall DoD and 
Component goals are met and sustained.
    (9) Evaluate employment policies, practices, and patterns within 
their respective Components and identify and correct and institutional 
barriers that restrict opportunities for recruitment, employment, 
advancement, awards, or training for minorities, women, and people with 
disabilities and ensure that EEO officers and civilian personnel 
officers provide leadership in eliminating these barriers.
    (10) Ensure that installations and activities establish focused 
external recruitment programs to produce employment applications from 
minorities, women, and people with disabilities who are qualified to 
compete effectively with internal DoD candidates for employment at all 
levels and in all occupations.
    (11) Establish a continuing EEO educational program (including 
training in the prevention of sexual harassment) for civilian and 
military personnel who supervise civilian employees.
    (12) Establish EEO Awards Programs to recognize individuals and 
organizational units for outstanding achievement in one or all of the 
major EEO areas covered by this part.
    (13) Review all award and management training programs to ensure 
that minorities, women, and people with disabilities are considered, 
consistent with their qualifications and program criteria.
    (14) At military installations having a civilian work force and 
military units, ensure that the Civilian EEO Program is managed by and 
conducted for civilian personnel only and that the Military Equal 
Opportunity Program is managed by and conducted for military personnel 
only. Any exceptions to this

[[Page 16]]

policy must be authorized by the Component head.

[53 FR 30990, Aug. 17, 1988, as amended at 56 FR 10170, Mar. 11, 1991; 
57 FR 35756, Aug. 11, 1992]



Sec. 191.6  Procedures.

    (a) Officials designated in this Directive shall allocate resources 
necessary to develop methods and procedures to ensure that all elements 
of this part are fully implemented and are in compliance with the spirit 
and intent of the DoD Human Goals Charter, laws, executive orders, 
regulatory requirements, and other Directive and Instructions governing 
the Civilian EEO Program within the Department of Defense.
    (b) Heads of DoD Components, in accordance with EEOC and OPM 
guidance and subject to oversight by and supplemental guidance from the 
ASD(FM&P), or designee shall:
    (1) Develop procedures for and implement an affirmative action 
program for minorities and women, consistent with section 717 of the 
Civil Rights Act of 1964, as amended; E.O. 11478; guidance from EEOC; 
and guidance from OPM.
    (2) Develop procedures for and implement an affirmative action 
program for people with disabilities consistent with section 501 of 
Rehabilitation Act of 1973, as amended, and guidance from EEOC.
    (3) Develop procedures for and implement an affirmative action 
program for disabled veterans, consistent with DoD Directive 1341.6.\8\ 
This program shall be consistent with the program established in 
paragraph (b)(2) of this section and coordinated with the Component's 
PPD manager.
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------

    (4) Develop procedures for and implement systems for investigation 
and resolution of complaints of employment discrimination under section 
717 of the Civil Rights Act of 1964, as amended; sections 501, 503, and 
504 of the Rehabilitation Act of 1973, as amended and DoD Directive 
1020.1; section 402 of the Vietnam Era Veterans' Readjustment Assistance 
Act of 1974, as amended; the Age Discrimination in Employment Act of 
1967, as amended; guidance from EEOC; and applicable case law.
    (5) Develop procedures for and implement a Federal Equal Opportunity 
Recruitment Program for minorities and women and a comparable special 
recruitment program for people with disabilities in accordance with the 
Civil Service Reform Act of 1978; EEOC instruction concerning 
affirmative action programs for people with disabilities; guidance from 
OPM; external recruitment programs to obtain employment applications 
from minorities, women, and people with disabilities who are competitive 
with internal DoD candidates for employment at all levels.
    (6) Develop procedures for and implement all SEPs established under 
this part at the Component level. These SEPs shall be integral parts of 
the Civilian EEO Program and shall be conducted in accordance with the 
provisions of this part and applicable EEOC and OPM guidance.
    (7) Develop procedures for and implement a program to eliminate 
sexual harassment in Component work places, consistent with DoD Policy 
on Sexual Harassment memorandums, and to ensure compliance with the 
Equal Pay Act.
    (8) Develop procedures for and implement a program of employment 
preference for spouses of military personnel, in accordance with DoD 
Instruction 1404.12.\9\
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------

    (9) Develop procedures for and implement a selective placement 
program for people with disabilities in accordance with guidance from 
OPM. This program shall be consistent with the program established in 
paragraph (b)(2) of this section, and coordinated with the Component's 
PPD manager.
    (10) Develop procedures for and implement staffing initiatives, 
training and development programs, and upward mobility programs designed 
to increase the representation of qualified minorities, women, and 
people with disabilities on certificates of eligibility and accompanying 
lists of individuals eligible for special appointments that are provided 
to selecting officials at all levels within the Component. These

[[Page 17]]

programs should include SES candidate programs and shall be targeted in 
career field in which there is underrepresentation and a likelihood of 
vacancies (e.g., science and engineering positions).
    (11) Develop procedures for and implement a program to evaluate all 
supervisors and managers with EEO responsibilities on their 
contributions to and support of the Component's EEO program. 
Specifically, Component SES and General Manager personnel, when 
appropriate, shall have their EEO responsibilities defined as a critical 
element in their performance appraisals in accordance with the Civil 
Service Reform Act of 1978.
    (12) Develop procedures for an implement a program to participate in 
and conduct ceremonies, where appropriate, at all levels of the 
Component to observe nationally proclaimed or other specially-designated 
community activities that particularly affect minorities, women, and 
people with disabilities and that support the Civilian EEO Program. 
Military and civilian personnel should both participate whenever 
possible. Example of special observances include Dr. Martin Luther King 
Jr.'s Birthday, Black History Month, National Women's History Week, 
Women's Equality Day, Hispanic Heritage Week, National Disability 
Employment Awareness Month, and the Decade of Disabled Persons.
    (13) Develop procedures for and implement a program to revise 
documents and change practices and policies that discriminate against 
civilian personnel on the basis or race, color, sex, religion, national 
origin, mental or physical disability, or age.
    (14) Develop procedures for and implement and affirmative action 
program for the continued Federal employment of minorities, women, and 
people with disabilities who have lost their jobs in DoD Components 
because of contracting decisions made under OMB Circular No. A-76. 
(Under OMB Circular Federal employees have, in general, the right of 
first refusal of employment under these contracts.)
    (15) Develop procedures for and implement a program for computer 
support of employees with disabilities consistent with DoD participation 
in activities of the Council on Accessible Technology in accordance with 
General Services Administration Order ADM 5420.71A.

[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989; 
57 FR 35756, Aug. 11, 1992]



Sec. 191.7  Civilian EEO program staff.

    (a) EEO Managers, including SEP Managers and other staff who are 
responsible for EEO and affirmative action programs, shall function at a 
level that is sufficiently responsible with the assigned organization to 
enable them to communicate effectively the goals and objectives of the 
program and to enable them to obtain the understanding, support, and 
commitment of managers and other officials at all levels within the 
organization.
    (b) It shall be the responsibility of EEO Managers, SEP Managers, 
and other program staff to develop, coordinate, implement, and recommend 
to managers, other officials, and covered groups the policy, guidance, 
information, and activities necessary to attain the goals of the SEPs 
and the overall DoD Civilian EEO Program.



Sec. 191.8  Defense equal opportunity council and EEO boards.

    (a) The DEOC shall be chaired by the ASD (FM&P) and shall coordinate 
policy for and review civilian and military equal opportunity programs, 
monitor progress of program elements, and advise the secretary of 
Defense on pertinent matters. One of the mandates of the DEOC shall be 
to pursue an aggressive course of action to increase the numbers of 
minorities, women, and people with disabilities in management and 
executive positions at grades 13 and above, including the SES and, at 
the request of the Secretary of Defense, Schedule C, and other noncareer 
executive positions in the SES and on the Executive Schedule. Members of 
the DEOC shall include the assistant Secretary of Defense (Reserve 
Affairs), Director of Administration and Management, and the Assistant 
Secretaries with responsibility for personnel policy and reserve affairs 
in the Military Departments.
    (b) The Civilian EEO Review Board shall be chaired by the ASD(FM&P), 
or

[[Page 18]]

designee. The Board shall support the DEOC and shall be made up of 
designated EEO and personnel representatives from the DoD Components and 
such other individuals as may be necessary to carry out the work of the 
DEOC and implement this part. The Board shall work with career 
management officials, other key management officials, and union 
representatives in developing policies, programs, and objectives.
    (c) The DoD SEP Boards shall be chaired by the DoD SEP Managers. 
These Boards shall be comprised of designated SEP Managers from the DoD 
Components and such other individuals as may be necessary to advise and 
assist in EEO activities and policy development in the Department of 
Defense. The Boards shall work with career management officials, other 
key management officials, and union representatives in developing 
policies, programs, and objectives.
    (d) The DEOC, Civilian EEO Review Board, and each SEP Board 
established at the DoD level shall have a Charter that describes its 
organization, management, functions, and operating procedures, 
consistent with DoD Directive 5105.18.\1\\0\
---------------------------------------------------------------------------

    \1\\0\ See footnote 1 to Sec. 191.2(c).
---------------------------------------------------------------------------

    (e) Civilian EEO Review Boards and SEP Boards may be established at 
Component, command, and installation levels as well as the DoD level to 
assist in program activities.
    (f) Members of covered groups should be represented on Civilian EEO 
Review Boards, SEP Boards, and subcommittees at all levels; and 
consideration should be given to participation by military personnel and 
by Federal employees who are union representatives.

[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989; 
57 FR 35756, Aug. 11, 1992]



Sec. 191.9  Information requirements.

    (a) The ASD(FM&P) shall:
    (1) Submit an annual report to the Secretary of Defense on the 
status of the DoD EEO program. This report shall be developed from 
existing documents, such as affirmative action plan accomplishment 
reports, civil rights budget reports, semiannual discrimination 
complaint reports, and Federal Equal Opportunity Recruitment Program 
reports, plus statistical data obtained from the Defense Manpower Data 
Center and reports of visits to DoD installations.
    (2) Submit consolidated DoD annual reports on discrimination 
complaints to the EEOC in accordance with EEOC guidance. This reporting 
requirement is assigned Interagency Report Control Number 0288-EEO-NA.
    (b) Heads of DoD Components shall:
    (1) Submit annual reports on discrimination complaints to the 
ASD(FM&P), or designee, in accordance with guidance from the EEOC. This 
reporting requirement is assigned Interagency Report Control Number 
0288-EEO-NA.
    (2) Submit copies of affirmative action program plan, affirmative 
action program plan updates, and affirmative action plan accomplishment 
reports for minorities, women, and people with disabilities to the 
ASD(FM&P), or designee, in addition to copies of annual reports for the 
Federal Equal Opportunity Recruitment Program.
    (3) Ensure that designated officials submit information for an 
annual report on computer support of employees with disabilities and for 
reports on individual computer accommodations for employees with 
disabilities. These reporting requirements are assigned RCS DD-FM&P (A) 
1731 and RCS DD-FM&P (AR) 1732.

[53 FR 30990, Aug. 17, 1988, as amended at 54 FR 15752, Apr. 19, 1989; 
57 FR 35756, Aug. 11, 1992]



Sec. 191.10  Effective date.

    This part is effective May 21, 1987.



PART 192_EQUAL OPPORTUNITY IN OFF-BASE HOUSING--Table of Contents




Sec.
192.1 Purpose.
192.2 Applicability.
192.3 Definitions.
192.4 Policy.
192.5 Responsibilities.
192.6 Procedures.

Appendix A to Part 192--Checklist for Commanders
Appendix B to Part 192--Procedures and Reports


[[Page 19]]


    Authority: 42 U.S.C. 3601 et seq.

    Source: 55 FR 6248, Feb. 22, 1990, unless otherwise noted. 
Redesignated at 56 FR 32964, July 18, 1991.



Sec. 192.1  Purpose.

    This part:
    (a) Revises 32 CFR part 192.
    (b) Revises the references, policies, and procedures covering off-
base housing and fair housing enforcement.
    (c) Outlines discrimination complaint inquiries or investigative 
procedures and hearing requirements.
    (d) Deletes the requirement for each Military Department to submit a 
semi-annual housing discrimination report to the Assistant Secretary of 
Defense (Force Management and Personnel) (ASD(FM&P)).
    (e) Requires each Military Service to report to the ASD(FM&P) any 
housing discrimination cases and their results in their Annual Military 
Equal Opportunity Assessment Report to the ASD(FM&P).
    (f) Requires each Military Department to maintain all completed or 
resolved housing discrimination cases.
    (g) Emphasizes liaison with other Government (local, State, or 
Federal) agencies.

[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964, 
July 18, 1991]



Sec. 192.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Joint Chiefs of Staff (JCS), the Joint 
Staff, the Unified and Specified Commands, the Inspector General of the 
Department of Defense (IG, DoD), the Uniformed Services University of 
the Health Sciences (USUHS), the Defense Agencies, and DoD Field 
Activities (hereafter referred to collectively as ``DoD Components''). 
The term ``Military Services,'' as used herein, refers to the Army, 
Navy, Air Force, and Marine Corps. DoD civilian employees (as defined in 
Sec. 192.3) will be offered the same services that members of the Armed 
Forces receive.

[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964, 
July 18, 1991]



Sec. 192.3  Definitions.

    Agent. Real estate agency, manager, landlord, or owner of a housing 
facility doing business with DoD personnel or a housing referral service 
(HRS).
    Area Outside the United States. Foreign countries where DoD 
personnel reside.
    Commander. The military or civilian head of any installation, 
organization, or agency of the Department of Defense who is assigned 
responsibility for the off-base housing program.
    Commuting Area. That area which is within a 1 hour commute by a 
privately-owned vehicle during rush hour and no farther than 30 miles 
from the installation, or within other limits to satisfy mission 
requirements.
    Complainant. A member of the Armed Forces (or authorized dependent 
designated by the member) or a civilian employee of the Department of 
Defense (or authorized dependent designated by the civilian employee) 
who submits a complaint of discrimination under this part.
    Discrimination. An act, policy, or procedure that arbitrarily denies 
equal treatment in housing because of race, color, religion, sex, 
national origin, age, handicap, or familial status to an individual or 
group of individuals.
    DoD Personnel. (1) Members of the Armed Forces (and their 
dependents) authorized to live off-base.
    (2) DoD civilian employees (and their dependents) who are 
transferred from one place of residence to another because of job 
requirements or recruited for job opportunities away from their current 
place of residence in the United States, and all DoD U.S. citizen 
appropriated fund and nonappropriated fund civilian employees and their 
dependents outside the United States.
    Familial Status. One or more individuals (who have not attained the 
age of 18 years) being domiciled with a parent or another person having 
legal custody of such an individual or individuals; or the designee of 
such parent or other person having such custody, with the written 
permission of such parent or other person.
    Listed Facility. A suitable housing facility (not on restrictive 
sanction) listed with the HRS as available for occupancy by DoD 
personnel.

[[Page 20]]

    Minorities. All persons classified as black (not of Hispanic 
origin), Hispanic, Asian or Pacific Islander, or American Indian or 
Alaskan native.
    Relief for the Complainant. Action taken by a commander for the 
benefit of a complainant.
    Restrictive Sanctions. Actions taken by a commander to prevent 
military personnel from moving to, or entering into a rental, lease, or 
purchase arrangement with, a housing facility, when its agent has been 
found to have discriminated against DoD personnel. Restrictive sanctions 
are effective against the agent and the facility.
    Survey. The procedure by which the HRS identifies housing resources 
to ascertain the availability of housing facilities for occupancy by DoD 
personnel.
    Verifiers. Volunteers used by the commander during the course of a 
housing discrimination investigation to determine if, in fact, housing 
discrimination is being practiced by an agent, as alleged. Verifiers are 
not required to be prospective tenants.



Sec. 192.4  Policy.

    It is DoD policy that under DoD Directive 1350.2 \1\ the Department 
of Defense is fully committed to the goal of obtaining equal treatment 
for all DoD personnel. Specific guidance on off-base housing and fair 
housing enforcement is as follows:
---------------------------------------------------------------------------

    \1\ Copies of all DoD issuances listed in this part may be obtained, 
at cost, from the National Technical Information Service, 5285 Port 
Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (a) National Housing Policy. Federal law prohibits discrimination in 
housing in the United States against any person because of race, color, 
religion, sex, age, national origin, handicap, or familial status.
    (1) Title VIII of P.L. 90-284 contains the following:
    (i) The fair housing provisions.
    (ii) Outlines the responsibilities of the Secretary of Housing and 
Urban Development (HUD) with regard to Public Law 90-284.
    (iii) Requires all Executive Departments and Agencies to administer 
housing and urban development programs and activities under their 
jurisdiction in a manner that shall reflect ``affirmatively'' the 
furthering of title VIII.
    (2) Title IX of Public Law 90-284 makes it a crime to intimidate 
willfully or interfere with any person by force or threat because of 
that person's activities in support of fair housing.
    (3) Title 42 U.S.C. 1982 prohibits discrimination in housing in the 
United States. This statute protects DoD personnel.
    (4) Public Law 100-430 amends title VIII of Public Law 90-284 by 
revising the procedures for the enforcement of fair housing requirements 
and adding protected classes of individuals.
    (5) Title VIII of Public Law 90-284, as amended by Public Law 100-
430, does not limit the applicability of any reasonable local, State, or 
Federal restrictions regarding the maximum number of occupants permitted 
to occupy a dwelling. Additionally, provisions of such title VIII 
regarding familial status do not apply with respect to housing intended 
for, and solely occupied by, persons 62 years of age or older or 
intended and operated for occupancy, but at least one person 55 years of 
age or older. For guidance regarding housing occupied by those 55 years 
of age or older, use the statutory provision at section 805 b(2)(c), 102 
Stat. 1623, of Public Law 100-430.
    (b) DoD Fair Housing Policy. The Department of Defense intends that 
Federal fair housing law shall be supported and that DoD personnel shall 
have equal opportunity for available housing regardless of race, color, 
religion, sex, age, national origin, handicap, or familial status.
    (1) That policy includes the objective of eliminating discrimination 
against DoD personnel in off-base housing. That objective is not 
achieved simply by finding a place to live in a particular part of town 
or in a particular facility for a specific person.
    (2) The intent is achieved when a person meeting the ordinary 
standards of character and financial responsibility is able to obtain 
off-base housing equally as any other person anywhere in the area 
surrounding a military installation, without suffering discrimination 
based on race, color, religion,

[[Page 21]]

sex, age, national origin, handicap or familial status.
    (i) The accomplishment of this objective shall not be hampered by 
requiring the submission of a formal complaint of discrimination. A 
suspected discriminatory act, with or without the filing of a formal 
complaint, is a valid basis for investigation and, if discrimination is 
substantiated, imposition of restrictive sanctions.
    (ii) On substantiation that an agent practiced discrimination, 
restrictive sanctions shall be imposed for a minimum of 180 days.
    (iii) The fact that Public Law 90-284, 42 U.S.C. 1982, and Public 
Law 100-430 may or may not provide a remedy in a given case of 
discrimination affecting DoD personnel does not relieve a commander of 
the responsibility to ensure equal treatment and equal opportunity for 
such personnel or to impose restrictive sanctions against the agent and/
or facility, when appropriate.
    (iv) Military installations shall develop information programs to 
apprise Service members of the DoD policy and program for equal 
opportunity in off-base housing. Commanders should use local community 
resources, such as civil rights organizations, religious and service 
groups, and local information media, in support of their programs.

[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964, 
July 18, 1991]



Sec. 192.5  Responsibilities.

    The Secretaries of the Military Departments shall:
    (a) Ensure nondiscrimination in referring DoD personnel to off-base 
housing facilities.
    (b) Continue efforts (as described in DoD 4165.63-M \2\ to identify 
and solicit nondiscriminatory assurances for housing facilities within 
the commuting area, which are considered to be suitable for occupancy by 
Service members.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 192.4.
---------------------------------------------------------------------------

    (c) Ensure that an office and staff required by DoD 4165.63-M are 
available in conjunction with the cognizant staff judge advocate or 
other legal authority to advise Service members on the following:
    (1) The procedures in this part.
    (2) The application of Public Law 90-284, 42 U.S.C. 1982, and Public 
Law 100-430 in specific situations.
    (3) The rights of individuals to pursue remedies through civilian 
channels, without recourse and in addition to the procedures prescribed 
in this part, including the right to:
    (i) Make a complaint directly to the Department of HUD and/or to the 
Department of Justice (DoJ) in the United States.
    (ii) Bring a private civil action in any court of competent 
jurisdiction.
    (d) Periodically review off-base housing procedures and policies to 
ensure effectiveness and compliance with this part. (Appendix A to this 
part is a checklist to help commanders with this review.)
    (e) Cooperate with other Government Agencies investigating housing 
discrimination complaints filed by Service members.
    (f) Ensure that each Military Service reports any housing 
discrimination cases and their results in the Annual Military Equal 
Opportunity Assessment Report required by DoD Instruction 1350.3.

[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32964, 
July 18, 1991]



Sec. 192.6  Procedures.

    (a) Appendix B to this part contains the detailed procedures for 
assisting Service members, investigating housing complaints, and 
reporting requirements for housing discrimination complaints.
    (b) The complaint and investigative report required in section B., 
appendix B to this part is exempt from formal approval and licensing 
under DoD 7750.5-M.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 192.4.

[55 FR 6248, Feb. 22, 1990. Redesignated and amended at 56 FR 32965, 
July 18, 1991]

            Appendix A to Part 192--Checklist for Commanders

    A. Are all assigned personnel informed of the Equal Opportunity in 
Off-Base Housing Program requirements before obtaining housing off base?
    B. Is there an effective information program ensuring equal 
opportunity in off-base housing information program?

[[Page 22]]

    C. Are community resources being used to support the equal 
opportunity in off-base housing information program?
    D. Are housing discrimination complaints being processed within the 
required time?
    E. Are complainants being informed in writing of the results of 
housing discrimination inquiry and/or investigating actions?
    F. Are housing surveys being conducted periodically to obtain new 
listings?
    G. Are restrictive sanctions being imposed immediately for a minimum 
of 180 days on agents found to be practicing discrimination?
    H. Are the services of command representatives provided to assist 
applicants in their search for housing?
    I. Are HHS personnel and equal opportunity personnel aware of and 
sensitive to housing problems encountered by DoD personnel?
    J. Are equal opportunity in off-base housing reports being submitted 
accurately and on time?

             Appendix B to Part 192--Procedures and Reports

                     A. Off-Base Housing Procedures

    DoD personnel seeking off-base housing shall be processed as 
follows:
    1. Seen by an HRS when available (optional for DoD civilian 
personnel).
    2. Provided assistance in seeking temporary and permanent off-base 
housing, as follows:

    a. Counseling on the equal opportunity in off-base housing program 
with particular emphasis placed on reporting any indication of 
discrimination against DoD personnel in their search for housing.
    b. Counseling and personal assistance shall include the following 
services:
    (1) Offering to check by telephone the availability of selected 
listings. A record shall be made and retained for future reference of 
the date, time, and nature of any conversation confirming the 
availability of a facility. The race, color, religion, sex, national 
origin, handicap, or familial status of the applicant shall not be 
divulged. Caution must be exercised to ensure that a pattern of 
``confirmation only for minorities'' does not develop.
    (2) Offering the services of a command representative (such as a 
unit sponsor or other designated person, when available) to accompany 
and assist the applicant in the search for housing.
    (3) Explaining various discriminatory methods that may be employed 
by agents. For instance, an agent may arbitrarily refuse to accept or 
consider the applicant as a tenant, falsely indicate the unit sought has 
been rented to another applicant, or refuse to make the unit available 
under the same terms and conditions as are ordinarily applied to 
applicants for the facilities. In such instances the following shall 
apply:
    (a) The agent shall be queried on the reasons why the unit is not 
available. After all reasonable steps have been taken to ascertain 
whether any valid nondiscriminatory reason can be shown for the agent's 
rejection of the applicant, and if there appears to be no such reason, a 
reasonable effort shall be made to persuade the agent to make the unit 
available to the applicant.
    (b) The incident shall be reported immediately by the command 
representative and the applicant to the HRS for appropriate command 
action.

                 B. Complaint Procedures--United States

    Commanders shall ensure that all DoD personnel are informed of the 
scope and provisions of the DoD Equal Opportunity in Off-Base Housing 
Program and advised to report immediately to the HRS (when available) 
any form of discrimination encountered when seeking housing within a 
Civilian Community. Incidents should be reported to base agencies or 
command representatives when an HRS is not available (i.e., equal 
opportunity officer, unit commander, supervisor). A verbal or written 
statement of discriminatory policy by an agent is considered to be an 
act or incident of discrimination, and the investigative procedures 
outlined in this appendix shall be followed.
    1. Inquiry into Complaint. Complaints of off-base housing 
discrimination must receive prompt attention. An inquiry into the 
complaint shall begin within 3 working days after receipt of the 
complaint. The inquiry may be informal, but must be detailed 
sufficiently to determine if discrimination occurred. Upon receipt of a 
discrimination complaint, the HRS (if there is no HRS, a command 
designated representative) shall take the following action:
    a. Immediately notify the commander.
    b. Promptly interview the complainant to determine the details and 
circumstances of the alleged discriminatory act.
    c. Immediately telephone or visit the facility and/or agent 
concerned, if the complaint is received shortly after the time of the 
alleged act and it concerns the change in availability of a vacancy 
(i.e., ``just rented,'' etc.). Attempt to determine if a vacancy exists 
without making reference to the complaint received. Request the 
commander to authorize the use of verifiers, as necessary. (See this 
appendix, subsection B.2.)
    d. Advise the complainant of the provisions and procedures in this 
Instruction and of the right to pursue further actions through HUD, DoJ, 
and local or State agencies. Coordinate efforts with the Office of Judge 
Advocate or other cognizant legal counsel to determine

[[Page 23]]

to what extent legal assistance can be provided to the complainant. 
Assist the complainant in completing seven signed, dated, and notarized 
copies of HUD Form 903, ``Housing Discrimination Complaint.'' The fact 
that a complainant might report an act of alleged discriminatory 
treatment, but declines completing a HUD Form 903, does not relieve the 
command of responsibility for making further inquiry and taking such 
subsequent actions, as may be appropriate.
    e. Document the complainant's action for future reference and inform 
the commander of the results of the HRS preliminary inquiry and actions 
taken. The commander shall take action to assist the complainant in 
obtaining suitable housing. If, due to previous discriminatory practices 
in the community, suitable housing cannot be obtained by the complainant 
in a reasonable amount of time, the complainant and the commander may 
use this fact to justify a request for priority in obtaining military 
housing or for humanitarian reassignment. Reassignment action is a last 
resort and must be justified fully through command personnel channels.
    2. Use of Verifiers. Verifiers are authorized to determine if a 
vacancy exists and whether or not rental or such practices are 
discriminatory. Verifiers shall not be used only for determining 
sincerity or normal practices of an agent about whom the HRS has not 
received a housing discrimination complaint.
    a. When selecting and using verifiers, the following applies:
    (1) Verification of the vacancy shall be made expediently after 
alleged act of discrimination.
    (2) Verifiers may be volunteers. (The equal opportunity office is a 
possible source for identifying individuals to be used as verifiers.)
    (3) The purpose of verification is to isolate the attribute of race, 
color, religion, sex, national origin, age, handicap, or familial status 
that is the suspected basis for the alleged discrimination against the 
complainant. Except for those attributes that are considered to be the 
source of the discrimination complaint, the verifier should possess 
attributes that are similar to the complainant. If two verifiers are 
used, one may possess similar attributes to the complainant. Ideally, 
two verifiers should be used.
    b. Instructions provided to the verifiers by HRS personnel should 
include the following:
    (1) Explanation of the equal opportunity in off-base housing and 
off-base housing referral programs.
    (2) Verifiers are to obtain information only on agent and/or 
facility operating policies, practices, and procedures for subsequent 
determination of complaint validity.
    (3) Verifiers are not to make a verbal or written contract for the 
housing unit, pay any money, or say they want the housing unit.
    (4) Verifiers shall be knowledgeable concerning family composition, 
pets, and housing requirements of the complainant; they shall ask for 
identical housing requirements.
    (5) The following information shall be obtained by the verifier, if 
possible:
    (a) Concerning the Facility. What is available? Does it meet the 
requirements of the complainant? Amount of rent or cost of facility? 
Deposit required? Is an application required? What is the time between 
filing an application and permission to move in? Are there minority 
families and/or singles in the facility? Make a note of the presence or 
absence of a vacancy sign, and any other information deemed appropriate.
    (b) Concerning the Prospective Tenants/Purchasers. If possible, 
ascertain criteria and qualifications that must be met (credit rating, 
salary, marital status, deposit, written application, etc.) and obtain a 
complete description of all procedures for becoming a tenant/purchaser 
including all steps from initial inquiry to moving in. Does the agent's 
subjective impression of the applicant appear to play any part in the 
decision to rent the unit?
    (6) The verifier's statement shall be completed immediately after 
the verification visit, if possible. It shall be accurate, objective, 
and factual. Include the following in the statement:
    (a) Date, time of visit, persons contacted, positions of persons 
contacted. Include any other pertinent information obtained during 
visit; i.e., length of time employed at facility, in addition to the 
information in this appendix, subparagraph B.2.b.(5), above.
    (b) When reconstructing a conversation, write in the first person 
and try to use direct quotes. Do not use pronouns such as ``he,'' 
``she,'' or ``they.'' Clearly identify who said what to whom.
    (c) Sign and date statement. Give full name, address, telephone 
number (duty or home), race, color, religion, sex, national origin, age, 
handicap or familial status, as relevant to the complaint.
    3. Complaint Process. If the basic facts of the HRS preliminary 
inquiry appear to substantiate the complaint, the commander shall ensure 
that the following actions begin within 3 working days of receipt of the 
inquiry report:
    a. Informal Hearing. Give written notice to the agent explaining the 
nature of the complaint and the agent's right to request an informal 
hearing with the commander. The notification shall state specifically 
the nature of the discrimination complaint and the right of the agent to 
appear personally at the hearing, to be represented by an attorney, to 
present evidence, and to call witnesses. The notification also shall 
state that the agent has 5 days after receipt of the written notice to 
request a hearing. If no request

[[Page 24]]

is received within 5 days, the lack of response shall be considered as a 
waiver of the right to such hearing. The written notification either 
shall be delivered to the agent personally by a representative of the 
commander, or shall be sent to the agent by certified mail with return 
receipt requested.
    (1) Composition of an Informal Hearing. The informal hearing shall 
be conducted by the commander or designee at a convenient location. The 
agent, agent's attorney, the complainant, the complainant's attorney, 
the equal opportunity officer, the HRS, the Staff Judge Advocate or 
other cognizant legal counsel, or other designated persons may attend.
    (2) Record of Hearing. A summary of the hearing shall be made a part 
of the complaint file.
    b. Legal Review. A legal review shall be accomplished following the 
inquiry and informal hearing (if applicable) and before the commander's 
final decision that the inquiry supports or fails to support the 
complaint. The summary and other pertinent documents shall be reviewed 
for content and completeness. A statement that such a review was 
conducted and signed by the Staff Judge Advocate or other cognizant 
legal counsel performing the review shall be made a part of the case 
file. That statement shall include:
    (1) Any necessary explanatory remarks, including comments on the 
facts and evidence presented.
    (2) Information known about pending complaints brought by other 
parties on the same facility and/or agent.
    (3) Comments on the civil rights laws relevant to the particular 
case.
    4. Commander's Decision. The responsibility for imposition of 
restrictive sanctions rests with the commander and cannot be delegated. 
The commander's decision shall be based on a full and impartial review 
of all facts and the policies and requirements as stated in this part. 
The commander's options include the following:
    a. If the commander determines that more information is required, or 
for any reason further inquiry is deemed necessary, an officer shall be 
appointed from sources other than the HRS to conduct a formal inquiry or 
investigation, as the situation warrants. The officer, if not an 
attorney, shall be afforded the advice and assistance of a Staff Judge 
Advocate or other cognizant legal counsel.
    b. If, in the commander's judgment, the inquiry or investigation 
fails to support the complaint the case shall be considered closed and 
the commander shall:
    (1) Inform the complainant in writing of all actions taken and 
advise the complainant of rights to pursue further actions to include 
the following:
    (a) The right to submit a complaint to the HUD and the DoJ.
    (b) The right to bring a private civil action in a State or Federal 
court of competent jurisdiction.
    (c) The availability of legal assistance from their local Staff 
Judge Advocate or other cognizant legal counsel in pursuing civil 
redress.
    (2) Summarize in the report file the practices giving rise to the 
complaint, the actions and results of the inquiry or investigation, and 
if discriminatory practices were found, written assurances from the 
agent on future facility and/or agent practices. The following 
statement, completed by the complainant, shall be included, as part of 
the case file: ``I am (am not) satisfied with the efforts taken by the 
commander on my behalf to achieve satisfactory resolution of my off-base 
housing discrimination complaint.'' If the complainant indicates a lack 
of satisfaction, the reasons must be included in the case file.
    (3) Inform the agent of the results of the inquiry by command 
correspondence if an informal hearing was held. Such correspondence 
should reiterate DoD policy and requirements for equal opportunity in 
off-base housing.
    (4) Forward unsubstantiated complaint reports and HUD Form 903 to 
the HUD and the DoJ if requested by the complainant.
    (5) Retain a copy of the report file for 2 years for future 
reference.
    c. If the inquiry or investigation supports the complainant's charge 
of discrimination and the discriminatory act is determined by the 
commander to conflict with DoD policy, the commander shall:
    (1) Impose restrictive sanctions against the agent and/or facility 
for a minimum of 180 days. Sanctions shall remain in effect until the 
requirements in this appendix, subparagraphs B.6.a.(1) or B.6.a.(2), 
below, are met. Restrictive sanctions shall be imposed when a suspected 
discriminatory act, despite the absence of a formal complaint, is 
investigated and found valid. The fact that a validated discrimination 
complaint and/or incident has been or is scheduled to be forwarded to 
another Agency (the HUD, the DoJ, etc.) is not cause for withholding 
sanction action pending the outcome of that Agency's further review or 
investigation. When imposing a restrictive sanction, the commander 
shall:
    (a) Remove the facility listing(s) from HRO files.
    (b) Impose restrictive sanctions against all facilities owned or 
operated by the agent concerned.
    (c) Place the facility on the restrictive sanction list maintained 
by the HRS. The restrictive sanction list shall be prepared on official 
letterhead stationery, signed by the commander, and include the 
authority for and conditions of the restrictive sanctions.
    (d) Inform the agent concerned by command correspondence that:

[[Page 25]]

    (1) Restrictive sanctions have been imposed.
    (2) The reasons, nature, and minimum duration of the restrictions.
    (3) The action required for the removal of sanctions at the 
conclusion of the minimum period.

The notification of restrictive sanctions shall be sent by certified 
mail, return receipt requested or delivered to the agent personally by a 
command representative.
    (e) Provide all DoD personnel reporting to the HRS with a copy of 
the restrictive sanction list, and advise members of the Armed Forces 
that they may not rent, lease, purchase, or reside in any of the listed 
facilities. Obtain a signed acknowledgment of receipt of the restrictive 
sanction list from the HRS using a DD Form 1746, ``Application for 
Assignment to Housing.''
    (f) Advise other military installations of the restrictive sanction 
action taken when the sanctioned facility is located within the 
commuting area of their military installations.
    (2) Inform the complainant in writing of all actions taken and 
advise the complainant that his or her case will receive continuing 
action to include, if the complainant requests, forwarding the case file 
to the HUD and/or the DoJ for action.
    (3) Before forwarding the report to the respective Military 
Department, prepare a memorandum outlining the following:
    (a) The base efforts made to obtain housing relief for the 
complainant.
    (b) The impact of restrictive sanctions on the off-base housing 
program and DoD personnel and their dependents.
    (c) Any other considerations deemed relevant.
    (4) Include a statement completed by the complainant for the case 
file. (See this appendix, subparagraph B.4.b.(3), above.)
    (5) If the act of discrimination falls within existing regulations, 
forward a copy of the complaint and investigation report directly to the 
HUD within 180 days after the occurrence of the alleged discriminating 
act, using HUD Form 903. The original report shall be sent to the 
appropriate HUD Regional Office or the U.S. Department of Housing and 
Urban Development Office of Fair Housing and Equal Opportunity, 451 7th 
Street SW., Washington, DC 20410. A copy of the complaint and 
investigation report shall be forwarded to the Civil Rights Division, 
Department of Justice, Washington, DC 20530.
    (6) When more than one complaint alleging discrimination in the same 
facility or by the same agent has been received, consolidate the 
complaints for the inquiry, legal review, and commander's memorandum.
    d. When a commander receives a complaint alleging further 
discrimination in a facility or by an agent after a completed case file 
has been closed, the commander shall forward the summary of the facts on 
the subsequent complaint, outlined in this enclosure, subparagraph 
B.4.c.(6), above. Include brief comments indicating the extent to which 
the new complaint affects the previous action.
    5. Followup Actions. After forwarding the report and all required 
attachments to the HUD and the DoJ, the commander shall take the 
following actions:
    a. Cooperate with the HUD, the DoJ, and the local and State agency 
representatives during their investigation and processing of the case, 
should those entities seek assistance.
    b. Periodically determine the status of the case by maintaining 
liaison with the HUD office concerned. Contact shall be maintained until 
such time as the case is resolved by the HUD.
    c. Ensure that the complainant is kept informed directly by the HUD 
and/or the DoJ.
    d. Ensure that DoD personnel comply with the restrictive sanctions 
imposed on the facility and/or the agent. Housing personnel will comply 
with the following:
    (1) Military personnel moving into or changing their place of 
residence in the commuting area of a military installation or activity 
may not enter into a rental, purchase, or lease arrangement with an 
agent or a facility that is under restrictive sanction.
    (2) Implement procedures for ensuring that DoD personnel seeking 
housing are made aware of, and are counselled on, current restrictive 
sanctions.
    (3) Sanctions are not applicable to the DoD personnel who may be 
residing in a facility when the sanction is imposed or to the extension 
or renewal of a rental or lease agreement originally entered into before 
the imposition of the sanction. Relocation of a military tenant within a 
restricted facility is prohibited without the written approval of the 
commander.
    (4) If it is determined that a member of the Armed Forces has 
intentionally taken residency in a restricted facility contrary to 
instructions received by Housing Referal personnel, the commander shall 
take appropriate disciplinary action against that number.
    (5) Periodically publish a current listing of restricted facilities 
in the base bulletin (or other appropriate means of internal 
distribution). Minimally, such publication shall occur when there has 
been an addition or deletion to the list.
    6. Removal of Restrictive Sanction
    a. A facility and/or agent may be removed from restrictive sanction 
only if one of the following actions is taken:

[[Page 26]]

    (1) The restrictive sanction may be removed before completion of the 
180 day restrictive period if an approved waiver request is obtained 
from the senior installation commander concerned, or designee. 
Consideration shall be given to lifting an imposed sanction only in 
exceptional circumstances and in conjunction with a written assurance of 
nondiscrimination from the agent concerned.
    (2) After completion of 180 days on restrictive sanction, if the 
agent provides written assurance of future nondiscrimination to the HRS.
    b. The commander shall inform the HRS, the equal opportunity office, 
and the agent in writing of the removal from restrictive sanction.
    7. ``Privacy Act'' and ``Freedom of Information Act'' Inquiries. 
Requests for information from reports of housing discrimination shall be 
processed in accordance with 32 CFR parts 285 and 286a.

           C. Compliant Procedures--Outside the United States

    Commanders of installations or activities outside the United States 
shall ensure that all DoD personnel, on reporting to the HRS, are 
clearly informed of the scope and provisions of the DoD Equal 
Opportunity in Off-Base Housing Program and advised to report 
immediately to the HRS any form of discrimination encountered as a 
tenant, prospective tenant, or purchaser. Incidents reported to base 
agencies or representatives other than the HRS (i.e., equal opportunity 
officer, unit commander, supervisor) shall be brought to the immediate 
attention of the HRS for appropriate action. On receiving a complaint of 
discrimination, the commander and HRS shall:
    1. Consult with the Staff Judge Advocate or other cognizant legal 
counsel to determine if the laws of the country concerned (or any 
subdivision thereof) prohibit any of the actions outlined in this 
appendix, section B., above.
    2. Take actions outlined in this appendix, section B, above, except 
that a HUD Form 903 shall not be completed because reports of cases 
arising outside the United States are not forwarded to the HUD or the 
DoJ. Complainants should understand that the fair housing provisions of 
the P.L. 90-284, ``Civil Rights Act,'' Title 42, United States, 1982, 
and Public Law 100-430, ``Fair Housing Amendments Act of 1988,'' 
September 13, 1988, are not applicable in areas outside the United 
States.
    3. Determine, with legal advice, whether redress for the 
discriminatory act should be sought from authorities in the host 
country. Redress shall be based on the laws of the country (or 
subdivision thereof) concerned.

                        D. Reporting Requirements

    1. A copy of each complaint and investigative report that 
substantiates a housing discrimination shall be submitted to the 
appropriate Military Department (manpower and reserve affairs and/or the 
equal opportunity office) not later than 45 days from the date the case 
is completed. Under normal circumstances, the commander of the 
installation concerned shall complete the required investigation and 
processing complaints within 45 days from the date that a housing 
complaint is filed by a complainant.
    2. A copy of complaint and investigative reports that do not 
substantiate allegations of housing discrimination shall be kept on file 
at the installation level for a 24-month period beginning from the date 
the case was completed.



PART 193_HIGHWAYS FOR NATIONAL DEFENSE--Table of Contents




Sec.
193.1 Purpose and scope.
193.2 Applicability.
193.3 Policy.
193.4 Authorities and responsibilities.

    Authority: 5 U.S.C. 301.

    Source: 33 FR 13016, Sept. 14, 1968, unless otherwise noted.



Sec. 193.1  Purpose and scope.

    This part sets forth policy, responsibilities, and authority in 
matters pertaining to Department of Defense highway needs and, when 
appropriate, to the highway needs of other Federal agencies, during 
peacetime and emergencies in the United States and its territories and 
possessions.



Sec. 193.2  Applicability.

    The provisions of this part apply to all components of the 
Department of Defense.



Sec. 193.3  Policy.

    In order to insure that the national defense is served by adequate, 
safe and efficient highway transportation, it shall be the policy of the 
DoD to (a) integrate the highway needs of the national defense into the 
civil highway programs of the various State and Federal agencies, and 
(b) cooperate with those agencies in matters pertaining to the use of 
public highways and in planning their development and construction.

[[Page 27]]



Sec. 193.4  Authorities and responsibilities.

    (a) The Secretary of the Army, as the Single Manager for Military 
Traffic, Land Transportation, and Common-User Ocean Terminals (see DoD 
Directive 5160.53, Single Manager Assignment for Military Traffic, Land 
Transportation, and Common-User Ocean Terminals, March 24, 1967 (32 FR 
5295)), is hereby designated as the Executive Agent for the Department 
of Defense (hereinafter referred to as the Executive Agent), in matters 
pertaining to public highways to serve the national defense in meeting 
both peacetime and mobilization highway transportation needs in the 
United States, its territories and possessions; and highway needs of 
other Federal agencies, when appropriate. The Executive Agent, or his 
designee, under the policy guidance of the Assistant Secretary of 
Defense (Installations and Logistics), will:
    (1) Coordinate the defense transportation interest in public 
highways, including the implementation of subsection (h), section 210 of 
Title 23 U.S. Code, and integrate foreseen DoD highway needs and 
operational requirements into the highway programs of the United States, 
its territories and possessions.
    (2) Review and analyze DoD access road needs, and, when appropriate, 
those of other Federal agencies from the standpoint of approved 
transportation engineering practices, statutory provisions, and policies 
and procedures of the Bureau of Public Roads, Department of 
Transportation.
    (3) Represent the DoD in matters pertaining to highways to serve the 
national defense in liaison with the Bureau of Public Roads, the 
American Association of State Highway Officials, and other appropriate 
Government and non-Government agencies.
    (4) Certify on behalf of the Secretary of Defense to the appropriate 
Government agency, the public highway needs of the DoD and, when 
appropriate, the needs of other Federal agencies, as being important to 
the national defense. (See section 210, Title 23, U.S. Code.)
    (5) Advise and assist the Assistant Secretary of Defense 
(Comptroller) in matters pertaining to the (i) preparation and 
justification of budget requirements for defense access road needs, and 
(ii) transfer of funds appropriated for this purpose to the Bureau of 
Public Roads.
    (6) Develop and maintain an efficient relationship between the 
design of military vehicles and State and Federal standards for the 
design of public highways to ensure the effective and efficient 
utilization of such highways by military vehicles.
    (7) Provide highway traffic engineering services to DoD components, 
when requested.
    (8) Insure effective cooperation between the Department of Defense 
and state highway authorities in matters pertaining to special defense 
utilization of public highways.
    (b) The other DoD Components will:
    (1) Maintain official liaison with the Executive Agent in matters 
pertaining to the provision of public highways to serve the national 
defense and the access road needs of new or expanded DoD installations 
and activities.
    (2) Furnish the Executive Agent with information and data on current 
and potential access-road and highway-system needs on request.
    (c) The Secretaries of the Military Departments, or their designees, 
are authorized to act for the Secretary of Defense under the provisions 
of subsection (h) of section 210, Title 23, U.S. Code, in determining, 
in connection with the funding of contracts for the construction of 
classified military installations and facilities for ballistic missiles, 
that construction estimates and the bids of contractors did not include 
allowances for repairing road damages.
    (d) The Secretaries of the Military Departments and the Directors of 
DoD Agencies will program, budget, and finance for the responsibilities 
assigned by this part and their access road requirements (see Pub. L. 
90-180, Military Construction Appropriation Act, fiscal year 1968, and 
successor statutes) in accordance with applicable program and financial 
guidelines and procedures.

                           PART 194 [RESERVED]

[[Page 28]]



PART 195_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE 

DEPARTMENT OF DEFENSE_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS 
ACT OF 1964--Table of Contents




Sec.
195.1 Purpose.
195.2 Definitions.
195.3 Application.
195.4 Policy.
195.5 Responsibilities.
195.6 Assurances required.
195.7 Compliance information.
195.8 Conduct of investigations.
195.9 Procedure for effecting compliance.
195.10 Hearings.
195.11 Decisions and notices.
195.12 Judicial review.
195.13 Effect on other issuances.
195.14 Implementation.

Appendix A to Part 195--Programs to Which This Part Applies

    Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws 
referred to in appendix A.

    Source: 29 FR 19291, Dec. 31, 1964, unless otherwise noted. 
Redesignated at 56 FR 32965, July 18, 1991.



Sec. 195.1  Purpose.

    The purpose of this part is to effectuate the provisions of Title VI 
of the Civil Rights Act of 1964 (referred to in this part as the 
``Act'') to the end that no person in the United States shall, on the 
ground of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be otherwise subjected 
to discrimination under any program or activity receiving Federal 
financial assistance from any component of the Department of Defense.



Sec. 195.2  Definitions.

    (a) Component means the Office of the Secretary of Defense, a 
military department or a Defense agency.
    (b) Responsible Department official means the Secretary of Defense 
or other official of the Department of Defense or component thereof who 
by law or by delegation has the principal responsibility within the 
Department or component for the administration of the law extending such 
assistance.
    (c) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term ``State'' means any one 
of the foregoing.
    (d) The term Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (e) The term program includes any program, project, or activity for 
the provision of services, financial aid, or other benefits to 
individuals, or for the provision of facilities for furnishing services, 
financial aid or other benefits to individuals. The services, financial 
aid, or other benefits provided under a program receiving Federal 
financial assistance shall be deemed to include any services, financial 
aid, or other benefits provided with the aid of Federal financial 
assistance or with the aid of any non-Federal funds, property, or other 
resources required to be expended or made available for the program to 
meet matching requirements or other conditions which must be met in 
order to receive the Federal financial assistance, and to include any 
services, financial aid, or other benefits provided in or through a 
facility provided with the aid of Federal financial assistance or such 
non-Federal resources.
    (f) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.

[[Page 29]]

    (g) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include any ultimate beneficiary under any such program.
    (h) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient for the purpose of carrying out a program.
    (i) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible Department 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term ``application'' means such an 
application, request or plan.



Sec. 195.3  Application.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by any component of 
the Department of Defense, including the federally assisted programs and 
activities listed in appendix A of this part. This directive applies to 
money paid, property transferred, or other Federal financial assistance 
extended under any such program after January 7, 1965 pursuant to an 
application approved prior to such date. This directive does not apply 
to: (a) Any Federal financial assistance by way of insurance guaranty 
contracts, (b) money paid, property transferred, or other assistance 
extended under any such program before January 7, 1965, (c) any 
assistance to any individual who is the ultimate beneficiary under any 
such program, or (d) any employment practice, under any such program, of 
any employer, employment agency, or labor organization, except as noted 
in Sec. 195.4(b)(5) of this part. The fact that a program or activity 
is not listed in appendix A shall not mean, if title VI of the Act is 
otherwise applicable, that such program is not covered. Other programs 
under statutes now in force or hereinafter enacted may be added to this 
list by notice published in the Federal Register.

[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973. 
Redesignated and amended at 56 FR 32965, July 18, 1991]



Sec. 195.4  Policy.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this (part) applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program to which this part applies may not, directly or 
through contractual or other arrangements, on the ground of race, color, 
or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) In determining the site or location of facilities, a recipient 
may not make selections with the purpose of excluding individuals from, 
denying them the benefits of, or subjecting them to discrimination under 
any program to which this part applies, on the ground of race, color, or 
national origin; or with the purpose or effect of defeating or 
substantially impairing the accomplishment of the objectives of the Act 
or this part.
    (iv) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (v) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (vi) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or

[[Page 30]]

other benefit provided under the program;
    (vii) Deny an individual an opportunity to participate in the 
program through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program;
    (viii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respect individuals 
of a particular race, color, or national origin.
    (3) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (4)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color, or national origin.
    (5) Where a primary objective of the Federal financial assistance is 
not to provide employment, but nevertheless discrimination on the 
grounds of race, color or national origin in the employment practices of 
the recipient or other persons subject to this Directive tends, on the 
grounds of race, color, or national origin of the intended 
beneficiaries, to exclude intended beneficiaries from participation in, 
to deny them benefits of, or to subject them to discrimination under any 
program to which this Directive applies, the recipient or other persons 
subject to this Directive are prohibited from (directly or through 
contractual or other arrangements) subjecting an individual to 
discrimination on the grounds of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising; employment, layoff or termination; upgrading, 
demotion or transfer; rates of pay and/or other forms of compensation; 
and use of facilities), to the extent necessary to assure equality of 
opportunity to, and nondiscriminatory treatment of the beneficiaries. 
Any action taken by a component pursuant to this provision with respect 
to a state or local agency subject to Standards for a Merit System of 
Personnel Administration, 45 CFR part 70, shall be consistent with those 
standards and shall be coordinated with the U.S. Civil Service 
Commission.
    (6) The enumeration of specific forms of prohibited discrimination 
in this section does not limit the generality of the prohibition in 
paragraph (a) of this section.

[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17959, July 5, 1973]



Sec. 195.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Manpower) shall be 
responsible for insuring that the policies of this part are effectuated 
throughout the Department of Defense. He may review from time to time as 
he deems necessary the implementation of these policies by the 
components of the Department of Defense.
    (b) The Secretary of each Military Department is responsible for 
implementing this part with respect to programs and activities receiving 
financial assistance from his Military Department; and the Assistant 
Secretary of Defense (Manpower) is responsible for similarly 
implementing this part

[[Page 31]]

with respect to all other components of the Department of Defense. Each 
may designate official(s) to fulfill this responsibility in accordance 
with Sec. 195.2(b).
    (c) The Assistant Secretary of Defense (Manpower) or, after 
consultation with the Assistant Secretary of Defense (Manpower), the 
Secretary of each Military Department or other responsible Department 
official designated by the Assistant Secretary of Defense (Manpower) may 
assign to officials of other departments or agencies of the Government, 
with the consent of such departments or agencies, responsibilities in 
connection with the effectuation of the purposes of Title VI of the Act 
and this part (other than responsibility for final decision as provided 
in Sec. 195.11), including the achievement of effective coordination 
and maximum uniformity within the Department and within the Executive 
Branch of the Government in the application of Title VI and this part to 
similar programs and in similar situations.

[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965, 
July 18, 1991]



Sec. 195.6  Assurances required.

    (a) General. (1)(i) Every application for Federal financial 
assistance to carry out a program to which this part applies, except a 
program to which paragraph (b) of this section applies, and every 
application for Federal financial assistance to provide a facility 
shall, as a condition to its approval and the extension of any Federal 
financial assistance pursuant to the application, contain or be 
accompanied by an assurance that the program will be conducted or the 
facility operated in compliance with all requirements imposed by or 
pursuant to this part.
    (ii) In the case where the Federal financial assistance is to 
provide or is in the form of personal property, or real property or 
interest therein or structures thereon, the assurance shall obligate the 
recipient, or, in the case of a subsequent transfer, the transferee, for 
the period during which the property or structures are used for a 
purpose for which the Federal financial assistance is extended or for 
another purpose involving the provision of similar services and 
benefits, or for as long as the recipient retains ownership or 
possession of the property, whichever is longer. In all other cases the 
assurance shall obligate the recipient for the period during which 
Federal financial assistance is extended pursuant to the application. In 
any case in which Federal financial assistance is extended without an 
application having been made, such extension shall be subject to the 
same assurances as if an application had been made. The responsible 
Department official shall specify the form of the foregoing assurances 
for each program, and the extent to which like assurances will be 
required of subguarantees, contractors and subcontractors, transferees, 
successors in interest, and other participants in the program. Any such 
assurance shall include provisions which give the United States a right 
to seek its judicial enforcement.
    (2) In the case of real property, structures or improvements 
thereon, or interest therein, which was acquired through a program of 
Federal financial assistance, or in the case where Federal financial 
assistance is provided in the form of a transfer of real property or 
interest therein from the Federal Government, the instrument effecting 
or recording the transfer, shall contain a covenant running with the 
land assuring nondiscrimination for the period during which the real 
property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. Where no 
transfer of property is involved, but property is improved under a 
program of Federal financial assistance, the recipient shall agree to 
include such a covenant in any subsequent transfer of such property. 
Where the property is obtained from the Federal Government, such 
covenant may also include a condition coupled with a right to be 
reserved by the Department to revert title to the property in the event 
of a breach of the covenant where, in the discretion of the responsible 
Department official, such a condition and right of reverter is 
appropriate to the program under which the real property

[[Page 32]]

is obtained and to the nature of the grant and the grantee. In the event 
a transferee of real property proposes to mortgage or otherwise encumber 
the real property as security for financing construction of new, or 
improvement of existing facilities on such property for the purposes for 
which the property was transferred, the responsible Department official 
may agree, upon request of the transferee and if necessary to accomplish 
such financing, and upon such conditions as he deems appropriate, to 
forbear the exercise of such right to revert title for so long as the 
lien of such mortgage or other encumbrance remains effective. In 
programs receiving Federal financial assistance in the form, or for the 
acquisition of real property or an interest in real property, to the 
extent that rights to space on, over, or under any such property are 
included as part of the program receiving such assistance, the 
nondiscrimination requirements of this part shall extend to any facility 
located wholly or in part in such space.
    (3) The assurance required in the case of a transfer of surplus 
personal property shall be inserted in a written agreement by and 
between the Department of Defense component concerned and the recipient.
    (b) Continuing State programs. Every application by a State agency 
to carry out a program involving continuing Federal financial assistance 
to which this part applies shall as a condition to its approval and the 
extension of any Federal financial assistance pursuant to the 
application (1) contain or be accompanied by a statement that the 
program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this part, 
and (2) provide or be accompanied by provision for such methods of 
administration for the program as are found by the responsible 
Department official to give reasonable assurance that the applicant and 
all recipients of Federal financial assistance under such program will 
comply with all requirements imposed by or pursuant to this part. In 
cases of continuing State programs in which applications are not made, 
the extension of Federal financial assistance shall be subject to the 
same conditions under this subsection as if applications had been made.
    (c) Assurances from institutions. (1) In the case of Federal 
financial assistance to an institution of higher education, the 
assurance required by this section shall extend to admission practices 
and to all other practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education, or any other institution, insofar as the assurance relates to 
the institution's practices with respect to admission or other treatment 
of individuals as students of the institution or to the opportunity to 
participate in the provision of services or other benefits to such 
individuals, shall be applicable to the entire institution unless the 
applicant establishes, to the satisfaction of the responsible Department 
official, that the institution's practices in designated parts or 
programs of the institution will in no way affect its practices in the 
program of the institution for which Federal financial assistance is 
sought, or the beneficiaries of or participants in such program. If in 
any such case the assistance sought is for the construction of a 
facility or part of a facility, the assurance shall in any event extend 
to the entire facility and to facilities operated in connection 
therewith.
    (d) Elementary and secondary schools. The requirement of paragraph 
(a), (b), or (c) of this section, with respect to any elementary or 
secondary school or school system shall be deemed to be satisfied if 
such school or school system (1) is subject to a final order of a court 
of the United States for the desegregation of such school or school 
system, and provides an assurance that it will comply with such order, 
including any future modification of such order, or (2) submits a plan 
for the desegregation of such school or school system which the 
responsible official of the Department of Health, Education, and Welfare 
determines is adequate to accomplish the purposes of the Act and this 
part, and provides reasonable assurance that it will carry out such 
plan; in any case of continuing Federal financial assistance the said 
Department officer may reserve the right to redetermine, after such 
period as may

[[Page 33]]

be specified by him, the adequacy of the plan to accomplish the purpose 
of the Act or this part within the earliest practicable time. In any 
case in which a final order of a court of the United States for the 
desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of said order.

[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]



Sec. 195.7  Compliance information.

    (a) Cooperation and assistance. Each responsible Department official 
shall to the fullest extent practicable seek the cooperation of 
recipients in obtaining compliance with this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible Department official timely, complete and 
accurate compliance reports at such times, and in such form and 
containing such information, as the responsible Department official may 
determine to be necessary to enable him to ascertain whether the 
recipient has complied or is complying with this part. In general, 
recipients should have available for the Department racial and ethnic 
data showing the extent to which members of minority groups are 
beneficiaries of federally assisted programs. In the case of any program 
under which a primary recipient extends Federal financial assistance to 
any other recipient, such other recipient shall also submit such 
compliance reports to the primary recipient as may be necessary to 
enable the primary recipient to carry out its obligations imposed 
pursuant to this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Department official during normal business 
hours to such of its books, records, accounts, and other sources of 
information, and its facilities as may be pertinent to ascertain 
compliance with this part. Where any information required of a recipient 
is in the exclusive possession of any other institution or person and 
this institution or person shall fail or refuse to furnish this 
information, the recipient shall so certify in its report and shall set 
forth what efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program under which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible Department official 
finds necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this part.

[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973]



Sec. 195.8  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Department official 
or his designee(s) shall from time to time review the practices of 
recipients to determine whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the 
responsible Department official a written complaint. A complaint must be 
filed not later than 180 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Department official.
    (c) Investigations. The responsible Department official will make a 
prompt investigation whenever a compliance review, report, complaint, or 
any other information indicates a possible failure to comply with this 
part. The investigation should include, where appropriate, a review of 
the pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this part occurred, and 
other factors relevant to a determination of whether the recipient has 
failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the responsible Department official will so inform the

[[Page 34]]

recipient and the matter will be resolved by informal means whenever 
possible. If it has been determined that the matter cannot be resolved 
by informal means, action will be taken as provided in Sec. 195.9.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the responsible Department official 
will so inform the recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall not be disclosed except when necessary to 
carry out the purposes of this part including the conduct of any 
investigation, hearing, or judicial proceeding arising thereunder.

[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1974. 
Redesignated and amended at 56 FR 32965, July 18, 1991]



Sec. 195.9  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law as determined by the responsible Department 
official. Such other means may include, but are not limited to (1) a 
reference to the Department of Justice with a recommendation that 
appropriate proceedings be brought to enforce any rights of the United 
States under any law of the United States (including other titles of the 
Act), or any assurance or other contractual undertaking, and (2) any 
applicable proceedings under State or local law.
    (b) Noncompliance with Sec. 195.6. If an applicant fails or refuses 
to furnish an assurance required under Sec. 195.6 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The component of the 
Department of Defense concerned shall not be required to provide 
assistance in such a case during the pendency of the administrative 
proceedings under such paragraph except that the component shall 
continue assistance during the pendency of such proceedings where such 
assistance is due and payable pursuant to an application therefor 
approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. Except as provided in paragraph (b) of this 
section no order suspending, terminating or refusing to grant or 
continue Federal financial assistance shall become effective until (1) 
the responsible Department official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) there has been an express 
finding, after opportunity for a hearing (as provided in Sec. 195.10), 
of a failure by the applicant or recipient to comply with a requirement 
imposed by or pursuant to this part, (3) the action has been approved by 
the Secretary of Defense pursuant to Sec. 195.11, and (4) the 
expiration of 30 days after the Secretary of Defense has filed with the 
committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action. Any action 
to suspend or terminate or to refuse to grant or to continue Federal 
financial assistance shall be limited to the particular political 
entity, or part thereof, or other applicant or recipient as to whom such 
a finding has been made and shall be limited in its effect to the 
particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to affect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible Department official has determined that compliance cannot be 
secured by voluntary means, (2) the action has been approved

[[Page 35]]

by the Assistant Secretary of Defense (Manpower), (3) the recipient or 
other person has been notified of its failure to comply and of the 
action to be taken to effect compliance, and (4) the expiration of at 
least 10 days from the mailing of such notice to the recipient or other 
person. During this period of at least 10 days additional efforts shall 
be made to persuade the recipient or other person to comply with this 
part and to take such corrective action as may be appropriate.

[29 FR 19291, Dec. 31, 1964. Redesignated and amended at 56 FR 32965, 
July 18, 1991]



Sec. 195.10  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 195.9, reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the responsible 
Department official that the matter be scheduled for hearing or (2) 
advise the applicant or recipient that the matter in question has been 
set down for hearing at a stated place and time. The time and place so 
fixed shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of hearing. 
An applicant or recipient may waive a hearing and submit written 
information and argument. The failure of an applicant or recipient to 
request a hearing under this paragraph or to appear at a hearing for 
which a date has been set shall be deemed to be a waiver of the right to 
a hearing under section 602 of the Act and Sec. 195.11(c) and consent 
to the making of a decision on the basis of such information as is 
available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the responsible component of the Department of Defense in Washington, 
D.C., at a time fixed by the responsible Department official unless he 
determines that the convenience of the applicant or recipient or of the 
component requires that another place be selected. Hearings shall be 
held before the responsible Department official or, at his discretion, 
before a hearing examiner designated by him.
    (c) Hearing examiner. The examiner shall be a field grade officer or 
civilian employee above the grade of GS-12 (or the equivalent) who shall 
be a person admitted to practice law before a Federal court or the 
highest court of a State.
    (d) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the responsible component of the Department 
shall have the right to be represented by counsel.
    (e) Procedures. (1) The recipient shall receive an open hearing at 
which he or his counsel may examine any witnesses present. Both the 
responsible Department official and the applicant or recipient shall be 
entitled to introduce all relevant evidence on the issues as stated in 
the notice for hearing or as determined by the officer conducting the 
hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for record shall be open 
to examination by the parties and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent the substance 
thereof is stipulated for the record. All decisions shall be based upon 
the hearing record and written findings shall be made.
    (f) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies, or 
noncompliance with

[[Page 36]]

this part and the regulations of one or more other Federal departments 
or agencies issued under Title VI of the Act, the Assistant Secretary of 
Defense (Manpower), the Secretary of a Military Department, or other 
responsible Department official designated by the Assistant Secretary of 
Defense (Manpower) after consultation with the Assistant Secretary of 
Defense (Manpower) may, by agreement with such other departments or 
agencies where applicable, provide for the conduct of consolidated or 
joint hearings, and for the application to such hearings of appropriate 
procedures not inconsistent with this part. Final decisions in such 
cases, insofar as this part is concerned, shall be made in accordance 
with Sec. 195.11.

[29 FR 19291, Dec. 31, 1964, as amended at 30 FR 133, Jan. 7, 1965. 
Redesignated and amended at 56 FR 32965, July 18, 1991]



Sec. 195.11  Decisions and notices.

    (a) Decision by person other than the responsible department 
official. If the hearing is held by a hearing examiner such hearing 
examiner shall either make an initial decision, if so authorized, or 
certify the entire record including his recommended findings and 
proposed decision to the responsible Department official for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the applicant or recipient. Where the initial decision is made 
by the hearing examiner the applicant or recipient may within 30 days of 
the mailing of such notice of initial decision file with the responsible 
Department official his exceptions to the initial decision, with his 
reasons therefor. In the absence of exceptions, the responsible 
Department official may on his own motion within 45 days after the 
initial decision serve on the applicant or recipient a notice that he 
will review the decision. Upon the filing of such exceptions or of such 
notice of review the responsible Department official shall review the 
initial decision and issue his own decision thereon including the 
reasons therefor. In the absence of either exceptions or a notice of 
review the initial decision shall constitute the final decision of the 
responsible Department official.
    (b) Decisions on record or review by the responsible department 
official. Whenever a record is certified to the responsible Department 
official for decision or he reviews the decision of a hearing examiner 
pursuant to paragraph (a) of this section or whenever the responsible 
Department official conducts the hearing, the applicant or recipient 
shall be given reasonable opportunity to file with him briefs or other 
written statements of its contentions, and a copy of the final decision 
of the responsible Department official shall be given in writing to the 
applicant or recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 195.10(a), a decision shall be made 
by the responsible Department official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
responsible Department official shall set forth his ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the applicant or recipient has failed to comply.
    (e) Approval by the Secretary of Defense. Any final decision of a 
responsible Department official which provides for the suspension or 
termination of, or the refusal to grant or continue Federal financial 
assistance, or the imposition of any other sanction available under this 
part or the Act, shall promptly be transmitted to the Secretary of 
Defense, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (f) Contents of orders. The final decision may provide for 
suspension or termination of, or refusal to grant or continue Federal 
financial assistance, in whole or in part, under the program involved, 
and may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such program to the 
applicant or recipient determined by such decision to be in

[[Page 37]]

default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the responsible 
Department official that it will fully comply with this part.
    (g) Post-termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Department official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the applicant or 
recipient has met the requirements of paragraph (g)(1) of this section. 
If the responsible Department official determines that those 
requirements have been satisfied, he shall restore such eligibility.
    (3) If the responsible Department official denies any such request, 
the applicant or recipient may submit a request for a hearing in 
writing, specifying why it believes such official to have been in error. 
It shall thereupon be given an expeditious hearing, with a decision on 
the record, in accordance with rules of procedure issued by the 
responsible Department official. The applicant or recipient will be 
restored to such eligibility if it proves at such a hearing that it 
satisfied the requirements of paragraph (g)(1) of this section. While 
proceedings under this subsection are pending, the sanctions imposed by 
the order issued under paragraph (f) of this section shall remain in 
effect.

[29 FR 19291, Dec. 31, 1964, as amended at 38 FR 17960, July 5, 1973. 
Redesignated and amended at 56 FR 32965, July 18, 1991]



Sec. 195.12  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 195.13  Effect on other issuances.

    All issuances heretofore issued by any officer of the Department of 
Defense or its components which impose requirements designed to prohibit 
any discrimination against individuals on the ground of race, color, or 
national origin under any program to which this part applies, and which 
authorize the suspension or termination of or refusal to grant or to 
continue Federal financial assistance to any applicant for or recipient 
of such assistance under such program for failure to comply with such 
requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this part, except that nothing in this 
part shall be deemed to relieve any person of any obligation assumed or 
imposed under any such superseded regulation, order, instruction, or 
like direction prior to the effective date of this part. Nothing in this 
part, however, shall be deemed to supersede any of the following 
(including future amendments thereof):
    (a) Executive Orders 10925 and 11114 and issuances thereunder,
    (b) The ``Standards for a Merit System of Personnel 
Administration,'' issued jointly by the Secretaries of Defense, of 
Health, Education, and Welfare, and of Labor, 28 FR 734, or
    (c) Executive Order 11063 and issuances thereunder, or any other 
issuances, insofar as such Order or issuances prohibit discrimination on 
the ground of race, color, or national origin in any program or 
situation to which this part is inapplicable, or prohibit discrimination 
on any other ground.



Sec. 195.14  Implementation.

    The Secretary of each Military Department shall submit regulations 
implementing this part to the Assistant Secretary of Defense (Manpower).

       Appendix A to Part 195--Programs to Which This Part Applies

    1. The Army and Air National Guard (Title 32, United States Code).

[[Page 38]]

    2. Various programs involving loan or other disposition of surplus 
property (various general and specialized statutory provisions 
including: 40 United States Code 483, 484, 512; 49 United States Code 
1101-1119; 10 United States Code 2541, 2542, 2543, 2572, 2662, 7308, 
7541, 7542, 7545, 7546, 7547).
    3. National Program for Promotion of Rifle Practice (10 United 
States Code 4307 and annual Department of Defense Appropriation Act).
    4. National Defense Cadet Corps Program (10 United States Code 
3540(b), 4651).
    5. Office of Civil Defense assistance to programs of adult education 
in civil defense subjects (50 United States Code App. 2281 (e), (f)).
    6. Office of Civil Defense radiological instruments grants (50 
United States Code App. 2281(h)).
    7. Office of Civil Defense program (with Public Health Service) for 
development of instructional materials on medical self-help (50 United 
States Code App. 2281 (e), (f)).
    8. Office of Civil Defense university extension programs for civil 
defense instructor training (50 United States Code App. 2281 (e)).
    9. Office of Civil Defense programs for survival supplies and 
equipment, survival training, emergency operating center construction, 
and personnel and administrative expenses (50 United States Code App. 
2281(i), 2285).
    10. Office of Civil Defense Shelter Provisioning Program (50 United 
States Code App. 2281(h)).
    11. Office of Civil Defense assistance to students attending Office 
of Civil Defense schools (50 United States Code App. 2281(e)).
    12. Office of Civil Defense loans of equipment or materials from OCD 
stockpiles for civil defense, including local disaster purposes (50 
United States Code App. 2281).
    13. Navy Science Cruiser Program (SecNav Instruction 5720.19A).
    14. Civil Air Patrol (10 United States Code 9441).
    15. Research grants made under the authority of Pub. L. 85-934 (42 
United States Code 1892).
    16. Contracts with nonprofit institutions of higher education or 
with nonprofit organizations whose primary purpose is the conduct of 
scientific research, wherein title to equipment purchased with funds 
under such contracts may be vested in such institutions or organizations 
under the authority of Pub. L. 85-934 (42 United States Code 1891).
    17. Army Corps of Engineers participation in cooperative 
investigations and studies concerning erosion of shores of coastal and 
lake waters (33 United States Code 426).
    18. Army Corps of Engineers assistance in the construction of works 
for the restoration and protection of shores and beaches (33 United 
States Code 426e-h).
    19. Public park and recreational facilities at water resource 
development projects under the administrative jurisdiction of the 
Department of the Army (16 United States Code 460d and Federal Water 
Project Recreation Act, Pub. L. 89-72, 79 Stat. 218, July 9, 1965).
    20. Payment to States of proceeds of lands acquired by the United 
States for flood control, navigation, and allied purposes (33 United 
States Code 701-c-3).
    21. Grants of easements without consideration, or at a nominal or 
reduced consideration, on lands under the control of the Department of 
the Army at water resource development projects (33 United States Code 
558c and 702d-1; 10 United States Code 2668 and 2669); 43 United States 
Code 961; 40 United States Code 319).
    22. Army Corps of Engineers assistance in the construction of small 
boat harbor proj ects (33 United States Code 540 and 577, and 47 Stat. 
42, Feb. 10, 1932).
    23. Emergency bank protection works constructed by the Army Corps of 
Engineers for protection of highways, bridge approaches, and public 
works (33 United States Code 701r).
    24. Assistance to States and local interests in the development of 
water supplies for municipal and industrial purposes in connection with 
Army Corps of Engineers reservoir projects (Water Supply Act of 1958, 43 
United States Code 390b).
    25. Army Corps of Engineers contracts for remedial works under 
authority of section 111 of Act of July 3, 1958 (33 United States Code 
633).

[29 FR 19291, Dec. 31, 1964, as amended at 31 FR 6831, May 7, 1966]



PART 196_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
196.100 Purpose and effective date.
196.105 Definitions.
196.110 Remedial and affirmative action and self-evaluation.
196.115 Assurance required.
196.120 Transfers of property.
196.125 Effect of other requirements.
196.130 Effect of employment opportunities.
196.135 Designation of responsible employee and adoption of grievance 
          procedures.
196.140 Dissemination of policy.

                           Subpart B_Coverage

196.200 Application.

[[Page 39]]

196.205 Educational institutions and other entities controlled by 
          religious organizations.
196.210 Military and merchant marine educational institutions.
196.215 Membership practices of certain organizations.
196.220 Admissions.
196.225 Educational institutions eligible to submit transition plans.
196.230 Transition plans.
196.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

196.300 Admission.
196.305 Preference in admission.
196.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

196.400 Education programs or activities.
196.405 Housing.
196.410 Comparable facilities.
196.415 Access to course offerings.
196.420 Access to schools operated by LEAs.
196.425 Counseling and use of appraisal and counseling materials.
196.430 Financial assistance.
196.435 Employment assistance to students.
196.440 Health and insurance benefits and services.
196.445 Marital or parental status.
196.450 Athletics.
196.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

196.500 Employment.
196.505 Employment criteria.
196.510 Recruitment.
196.515 Compensation.
196.520 Job classification and structure.
196.525 Fringe benefits.
196.530 Marital or parental status.
196.535 Effect of state or local law or other requirements.
196.540 Advertising.
196.545 Pre-employment inquiries.
196.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

196.600 Notice of covered programs.
196.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52885, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec. 196.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 196.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Assistant Secretary of Defense 
(Force Management Policy).
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by

[[Page 40]]

the Federal agency that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of

[[Page 41]]

Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec. 
196.100 through 196.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec. 196.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 196.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 
196.110(a) to eliminate existing discrimination on the basis of sex or 
to eliminate the effects of past discrimination whether occurring prior 
to or subsequent to the submission to the designated agency official of 
such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the

[[Page 42]]

transferee, for the period during which the real property or structures 
are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 196.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec. 196.205 through 196.235(a).



Sec. 196.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 196.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 196.135  Designation of responsible employee and adoption of 
grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations.

[[Page 43]]

The recipient shall notify all its students and employees of the name, 
office address, and telephone number of the employee or employees 
appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 196.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec. 196.300 through 196.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec. 196.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec. 196.200  Application.

    Except as provided in Sec. Sec. 196.205 through 196.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec. 196.205  Educational institutions and other entities controlled by 
religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes

[[Page 44]]

to claim the exemption set forth in paragraph (a) of this section shall 
do so by submitting in writing to the designated agency official a 
statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 196.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 196.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 196.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec. 196.225 and 196.230, and Sec. Sec. 196.300 through 
196.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec. 196.300 through 196.310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 196.300 
through 196.310 apply to each recipient. A recipient to which Sec. Sec. 
196.300 through 196.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec. 196.300 through 
196.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 196.300 through 196.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec. 196.300 through 196.310 do not apply to any public 
institution of undergraduate higher education that traditionally and 
continually from its establishment has had a policy of admitting 
students of only one sex.



Sec. 196.225  Educational institutions eligible to submit transition 
plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 196.300 through 196.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec. 196.300 through 
196.310.



Sec. 196.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 196.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.

[[Page 45]]

    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 196.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 196.300 through 
196.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 196.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 196.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or

[[Page 46]]

    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 196.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec. 196.300 through Sec. Sec. 196.310 apply, 
except as provided in Sec. Sec. 196.225 and Sec. Sec. 196.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec. 196.300 through 196.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the

[[Page 47]]

basis of sex unless the use of such test or criterion is shown to 
predict validly success in the education program or activity in question 
and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec. 196.300 through 196.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 196.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 196.305  Preference in admission.

    A recipient to which Sec. Sec. 196.300 through 196.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec. 196.300 through 196.310.



Sec. 196.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
196.300 through 196.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec. 196.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec. 
196.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 196.300 through 196.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec. 196.300 through 196.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 196.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
196.400 through 196.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec. 196.300 through 196.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec. 196.300 
through 196.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 196.400 
through 196.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;

[[Page 48]]

    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 196.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization,

[[Page 49]]

or person that provides all or part of such housing to students of only 
one sex.



Sec. 196.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 196.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 196.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 196.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.

[[Page 50]]

    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 196.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 196.450.



Sec. 196.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec. 
196.500 through 196.550.



Sec. 196.440  Health and insurance benefits and services.

    Subject to Sec. 196.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec. 196.500 through 196.550 if it were provided to 
employees of the recipient.

[[Page 51]]

This section shall not prohibit a recipient from providing any benefit 
or service that may be used by a different proportion of students of one 
sex than of the other, including family planning services. However, any 
recipient that provides full coverage health service shall provide 
gynecological care.



Sec. 196.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 196.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 196.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;

[[Page 52]]

    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec. 196.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 196.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec. 196.500 
through 196.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec. 196.500 through 
196.550 apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;

[[Page 53]]

    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 196.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 196.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec. 196.500 through 196.550.



Sec. 196.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 196.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 196.550.



Sec. 196.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 196.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;

[[Page 54]]

    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 196.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 
196.235(d), a recipient shall treat pregnancy, childbirth, false 
pregnancy, termination of pregnancy, recovery therefrom, and any 
temporary disability resulting therefrom as any other temporary 
disability for all job-related purposes, including commencement, 
duration, and extensions of leave, payment of disability income, accrual 
of seniority and any other benefit or service, and reinstatement, and 
under any fringe benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 196.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 196.500 through 196.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 196.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 196.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is madeequally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 196.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
196.500 through 196.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action

[[Page 55]]

is essential to successful operation of the employment function 
concerned. A recipient shall not take action pursuant to this section 
that is based upon alleged comparative employment characteristics or 
stereotyped characterizations of one or the other sex, or upon 
preference based on sex of the recipient, employees, students, or other 
persons, but nothing contained in this section shall prevent a recipient 
from considering an employee's sex in relation to employment in a locker 
room or toilet facility used only by members of one sex.



                          Subpart F_Procedures



Sec. 196.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 196.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 32 CFR 195.7 through 195.12.

[65 FR 52885, Aug. 30, 2000]



PART 199_CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES 
(CHAMPUS)--Table of Contents




Sec.
199.1 General provisions.
199.2 Definitions.
199.3 Eligibility.
199.4 Basic program benefits.
199.5 TRICARE Extended Care Health Option (ECHO).
199.6 TRICARE--authorized providers.
199.7 Claims submission, review, and payment.
199.8 Double coverage.
199.9 Administrative remedies for fraud, abuse, and conflict of 
          interest.
199.10 Appeal and hearing procedures.
199.11 Overpayments recovery.
199.12 Third party recoveries.
199.13 TRICARE Dental Program.
199.14 Provider reimbursement methods.
199.15 Quality and utilization review peer review organization program.
199.16 Supplemental Health Care Program for active duty members.
199.17 TRICARE program.
199.18 Uniform HMO Benefit.
199.20 Continued Health Care Benefit Program (CHCBP).
199.21 Pharmacy Benefits Program.
199.22 TRICARE Retiree Dental Program (TRDP).
199.23 Special Supplemental Food Program.
199.24 TRICARE standard coverage for certain selected reserve members.

Appendix A to Part 199--Acronyms

    Authority: 5 U.S.C. 301; 10 U.S.C. chapter 55.

    Source: 51 FR 24008, July 1, 1986, unless otherwise noted.



Sec. 199.1  General provisions.

    (a) Purpose. This part prescribes guidelines and policies for the 
administration of the Civilian Health and Medical Program of the 
Uniformed Services (CHAMPUS) for the Army, the Navy, the Air Force, the 
Marine Corps, the Coast Guard, the Commissioned Corps of the U.S. Public 
Health Service (USPHS) and the Commissioned Corps of the National 
Oceanic and Atmospheric Administration (NOAA).
    (b) Applicability--(1) Geographic. This part is applicable 
geographically within the 50 States of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, and the United States 
possessions and territories, and in all foreign countries, unless 
specific exemptions are granted in writing by the Director, OCHAMPUS, or 
a designee.
    (2) Agency. The provisions of this part apply throughout the 
Department of Defense (DoD), the Coast Guard, the Commissioned Corps of 
the USPHS, and the Commissioned Corps of the NOAA.
    (c) Authority and responsibility--(1) Legislative authority--(i) 
Joint regulations. 10 U.S.C. chapter 55 authorizes the Secretary of 
Defense, the Secretary of Health and Human Services, and the Secretary 
of Transportation jointly to prescribe regulations for the 
administration of CHAMPUS.

[[Page 56]]

    (ii) Administration. 10 U.S.C. chapter 55 also authorizes the 
Secretary of Defense to administer CHAMPUS for the Army, Navy, Air 
Force, and Marine Corps under DoD jurisdiction, the Secretary of 
Transportation to administer CHAMPUS for the Coast Guard, when the Coast 
Guard is not operating as a service in the Navy, and the Secretary of 
Health and Human Services to administer CHAMPUS for the Commissioned 
Corps of the NOAA and the USPHS.
    (2) Organizational delegations and assignments--(i) Assistant 
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of 
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to 
provide policy guidance, management control and coordination as required 
for CHAMPUS, and to develop, issue, and maintain regulations with the 
coordination of the Military Departments and consistent with DoD 5025.1-
M.\1\ Additional implementing authority is contained in DoD Directive 
5105.46.\2\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the National Technical 
Information Service (NTIS), U.S. Department of Commerce, 5285 Port Royal 
Road, Springfield, VA 22161.
    \2\ Copies may be obtained; if needed from the Naval Publications 
and Forms Center, 5801 Tabor Avenue, Code 301, Philadelphia, PA 19120.
---------------------------------------------------------------------------

    (ii) Department of Health and Human Services. The Secretary of 
Health and Human Services has delegated authority to the Assistant 
Secretary for Health, DHHS, to consult with the Secretary of Defense or 
a designee and to approve and issue joint regulations implementing 10 
U.S.C. chapter 55. This delegation was effective April 19, 1976 (41 FR 
18698, May 6, 1976).
    (iii) Department of Transportation. The Secretary of Transportation 
has delegated authority to the Commandant, United States Coast Guard, to 
consult with the Secretary of Defense or a designee and to approve an 
issue joint regulations implementing 10 U.S.C., chapter 55.
    (iv) Office of CHAMPUS (OCHAMPUS). By DoD Directive 5105.46, 
OCHAMPUS was established as an OSD field activity under the policy 
guidance and direction of the ASD(HA). The Director, OCHAMPUS, is 
directed to execute the following responsibilities and functions:
    (A) Supervise and administer the programs and missions to:
    (1) Provide technical direction and guidance on organizational, 
administrative, and operational matters.
    (2) Conduct studies and research activities in the health care area 
to assist in formulating policy required to guide OCHAMPUS in carrying 
out its programs.
    (3) Enter into agreements through the Department of Defense with 
respect to the Military Departments or other U.S. Government entities, 
as required, for the effective performance of CHAMPUS.
    (4) Supervise and administer OCHAMPUS financial management 
activities to include:
    (i) Formulating budget estimates and justifications to be submitted 
to the Deputy Assistant Secretary of Defense (Administration) (DASD(A)) 
for inclusion in the overall budget for the Office of the Secretary of 
Defense.
    (ii) Ensuring the establishment and maintenance of necessary 
accounting records and submission of required financial reports to the 
DASD(A).
    (iii) Ensuring the effective execution of approved budgets.
    (5) Contract for claims processing services, studies and research, 
supplies, equipment, an other services necessary to carry out the 
CHAMPUS programs.
    (6) Monitor claims adjudication and processing contracts to ensure 
that CHAMPUS fiscal intermediaries are fulfilling their obligations.
    (7) Convey appropriate CHAMPUS information to providers of care, 
practitioners, professional societies, health industry organizations, 
fiscal agents, hospital contractors, and others who have need of such 
information.
    (8) Collect, maintain, and analyze program cost and utilization data 
appropriate for preparation of budgets, fiscal planning, and as 
otherwise needed to carry out CHAMPUS programs and missions.
    (9) Arrange for the facilities logistical and administrative support 
to be provided by the Military Departments.

[[Page 57]]

    (10) Execute such other functions as appropriate to administer the 
programs and missions assigned.
    (B) Direct and control of the office, activities, and functions of 
OCHAMPUS Europe (OCHAMPUSEUR).
    Note: The Director, OCHAMPUS, may also establish similar offices for 
OCHAMPUS Southern Hemisphere (OCHAMPUSSO) and OCHAMPUS Pacific 
(OCHAMPUSPAC).
    (C) Develop for issuance, subject to approval by the ASD(HA), such 
policies or regulations as required to administer and manage CHAMPUS 
effectively.
    (v) Evidence of eligibility. The Department of Defense, through the 
Defense Enrollment Eligibility Reporting System (DEERS), is responsible 
for establishing and maintaining a listing of persons eligible to 
receive benefits under CHAMPUS. Identification cards or devices bearing 
information necessary for preliminary evidence of eligibility, subject 
to verification through the DEERS, shall be issued to eligible persons 
by the appropriate Uniformed Services (DoD 1341.1-M, ``Defense 
Enrollment Eligibility Reporting System (DEERS) Program Manual'').
    (d) Medical benefits program. The CHAMPUS is a program of medical 
benefits provided by the U.S. Government under public law to specified 
categories of individuals who are qualified for these benefits by virtue 
of their relationship to one of the seven Uniformed Services. Although 
similar in structure in many of its aspects, CHAMPUS is not an insurance 
program in that it does not involve a contract guaranteeing the 
indemnification of an insured party against a specified loss in return 
for a premium paid. Further, CHAMPUS is not subject to those state 
regulatory bodies or agencies that control the insurance business 
generally.
    (e) Program funds. The funds used by CHAMPUS are appropriated funds 
furnished by the Congress through the annual appropriation acts for the 
Department of Defense and the DHHS. These funds are further disbursed by 
agents of the government under contracts negotiated by the Director, 
OCHAMPUS, or a designee, under the provisions of the Federal Acquisition 
Regulation (FAR). These agents (referred to in this part as CHAMPUS 
fiscal intermediaries) receive claims against CHAMPUS and adjudicate the 
claims under this part and in accordance with administrative procedures 
and instructions prescribed in their contracts. The funds expended for 
CHAMPUS benefits are federal funds provided CHAMPUS fiscal 
intermediaries solely to pay CHAMPUS claims, and are not a part of or 
obtained from the CHAMPUS fiscal intermediary's funds related to other 
programs or insurance coverage. CHAMPUS fiscal intermediaries are 
reimbursed for the adjudication and payment of CHAMPUS claims at a rate 
(generally fixed-price) prescribed in their contracts.
    (f) Claims adjudication and processing. The Director, OCHAMPUS, is 
responsible for making such arrangements as are necessary to adjudicate 
and process CHAMPUS claims worldwide.
    (1) The United States--(i) Contracting out. The primary method of 
processing CHAMPUS claims in the United States is through competitively 
procured, fixed-price contracts. The Director, OCHAMPUS, or a designee, 
is responsible for negotiating, under the provisions of the FAR, 
contracts for the purpose of adjudicating and processing CHAMPUS claims 
(and related supporting activities).
    (ii) In-house. The Director, OCHAMPUS, or a designee, is authorized 
to adjudicate and process certain CHAMPUS claims in-house at OCHAMPUS, 
when it is determined to be in the best interests of CHAMPUS subject to 
applicable considerations set forth in OMB Circular A-76. Such in-house 
claims processing may involve special or unique claims, or all claims 
for a specific geographic area.
    (2) Outside the United States--(i) Special subsidiary office or 
contracting out. For adjudicating and processing CHAMPUS claims for 
services or supplies provided outside the United States, the Director, 
OCHAMPUS, or a designee, has the option of either setting up a special 
subsidiary claims paying operation (such as OCHAMPUSEUR) or contracting 
out as described in paragraph (f)(1)(i) of this section. Such claims 
paying operations are reviewed periodically to determine

[[Page 58]]

whether current arrangements continue to be appropriate and the most 
effective.
    (ii) Support agreements. In those situations outside the United 
States that demand special arrangements, the Director, OCHAMPUS, may 
enter into support agreements through the Department of Defense with any 
of the Military Departments or other government agency to process 
CHAMPUS claims in specific geographic locations. Such agreements may be 
negotiated for such period of time as the Director, OCHAMPUS, or 
designee, may determine to be necessary to meet identified special 
demands.
    (g) Recommendations for change to part. The Director, OCHAMPUS, or a 
designee, shall establish procedures for receiving and processing 
recommendations for changes to this part from interested parties.
    (h) CHAMPUS, claims forms. The Director, OCHAMPUS, or a designee, is 
responsible for the development and updating of all CHAMPUS claim forms 
and any other forms necessary in the administration of CHAMPUS.
    (i) The CHAMPUS handbook. The Director, OCHAMPUS, or a designee, 
shall develop the CHAMPUS, Handbook. The CHAMPUS Handbook is a general 
program guide for the use of CHAMPUS beneficiaries and providers and 
shall be updated, as required.
    (j) Program integrity. The Director, OCHAMPUS, or a designee, shall 
oversee all CHAMPUS personnel, fiscal intermediaries, providers, and 
beneficiaries to ensure compliance with this part. The Director, 
OCHAMPUS, or a designee, shall accomplish this by means of proper 
delegation of authority, separation of responsibilities, establishment 
of reports, performance evaluations, internal and external management 
and fiscal audits, personal or delegated reviews of CHAMPUS 
responsibilities, taking affidavits, exchange of information among state 
and Federal governmental agencies, insurers, providers and associations 
of providers, and such other means as may be appropriate. Compliance 
with law and this part shall include compliance with specific contracts 
and agreements, regardless of form, and general instructions, such as 
CHAMPUS policies, instructions, procedures, and criteria relating to 
CHAMPUS operation.
    (k) Role of CHAMPUS Health Benefits Advisor (HBA). The CHAMPUS HBA 
is appointed (generally by the commander of a Uniformed Services medical 
treatment facility) to serve as an advisor to patients and staff in 
matters involving CHAMPUS. The CHAMPUS HBA may assist beneficiaries or 
sponsors in applying for CHAMPUS benefits, in the preparation of claims, 
and in their relations with OCHAMPUS and CHAMPUS fiscal intermediaries. 
However, the CHAMPUS HBA is not responsible for CHAMPUS policies and 
procedures and has no authority to make benefit determinations or 
obligate Government funds. Advice given to beneficiaries as to 
determination of benefits or level of payment is not binding on OCHAMPUS 
or CHAMPUS fiscal intermediaries.
    (l) Cooperation and exchange of information with other Federal 
programs. The Director, OCHAMPUS, or a designee, shall disclose to 
appropriate officers or employees of the DHHS:
    (1) Investigation for fraud. The name and address of any physician 
or other individual actively being investigated for possible fraud in 
connection with CHAMPUS, and the nature of such suspected fraud. An 
active investigation exists when there is significant evidence 
supporting an initial complaint but there is need for further 
investigation.
    (2) Unnecessary services. The name and address of any provider of 
medical services, organization, or other person found, after 
consultation with an appropriate professional association or appropriate 
peer review body, to have provided unnecessary services. Such 
information will be released only for the purpose of conducting an 
investigation or prosecution, or for the administration of titles XVIII 
and XIX of the Social Security Act, provided that the information will 
be released only to the agency's enforcement branch and that the agency 
will preserve the confidentiality of the information received and will 
not disclose such information for other than program purposes.
    (m) Disclosure of information to the public. Records and information 
acquired in the administration of

[[Page 59]]

CHAMPUS are records of the Department of Defense and may be disclosed in 
accordance with DoD Directive 5400.7\3\, DoD 5400.7-R\4\, and DoD 
5400.11-R\5\ (codified in 32 CFR parts 286 and 286a), constituting the 
applicable DoD Directives and DoD Regulations implementing the Freedom 
of Information and the Privacy Acts.
---------------------------------------------------------------------------

    \3\ See footnote 2 to Sec. 199.1(c)(2)(i)
    \4\ See footnote 1 to Sec. 199.1(c)(2)(i)
    \5\ See footnote 1 to Sec. 199.1(c)(2)(i)
---------------------------------------------------------------------------

    (n) Discretionary authority. When it is determined to be in the best 
interest of CHAMPUS, the Director, OCHAMPUS, or a designee, is granted 
discretionary authority to waive any requirements of this part, except 
that any requirement specifically set forth in 10 U.S.C. chapter 55, or 
otherwise imposed by law, may not be waived. It is the intent that such 
discretionary authority be used only under very unusual and limited 
circumstances and not to deny any individual any right, benefit, or 
privilege provided to him or her by statute or this part. Any such 
exception granted by the Director, OCHAMPUS, or a designee, shall apply 
only to the individual circumstance or case involved and will in no way 
be construed to be precedent-setting.
    (o) Demonstration projects. (1) Authority. The Director, OCHAMPUS 
may waive or alter any requirements of this regulation in connection 
with the conduct of a demonstration project required or authorized by 
law except for any requirement that may not be waived or altered 
pursuant to 10 U.S.C. chapter 55, or other applicable law.
    (2) Procedures. At least 30 days prior to taking effect, OCHAMPUS 
shall publish a notice describing the demonstration project, the 
requirements of this regulation being waived or altered under paragraph 
(o)(1) of this section and the duration of the waiver or alteration. 
Consistent with the purpose and nature of demonstration projects, these 
notices are not covered by public comment practices under DoD Directive 
5400.9 (32 CFR part 296) or DoD Instruction 6010.8.
    (3) Definition. For purposes of this section, a ``demonstration 
project'' is a project of limited duration designed to test a different 
method for the finance, delivery or administration of health care 
activities for the uniformed services. Demonstration projects may be 
required or authorized by 10 U.S.C. 1092, any other statutory provision 
requiring or authorizing a demonstration project or any other provision 
of law that authorizes the activity involved in the demonstration 
project.''.
    (p) Military-Civilian Health Services Partnership Program. The 
Secretary of Defense, or designee, may enter into an agreement (external 
or internal) providing for the sharing of resources between facilities 
of the uniformed services and facilities of a civilian health care 
provider or providers if the Secretary determines that such an agreement 
would result in the delivery of health care in a more effective, 
efficient or economical manner. This partnership allows CHAMPUS 
beneficiaries to receive inpatient and outpatient services through 
CHAMPUS from civilian personnel providing health care services in 
military treatment facilities and from uniformed service professional 
providers in civilian facilities. The policies and procedures by which 
partnership agreements may be executed are set forth in Department of 
Defense Instruction (DoDI) 6010.12, ``Military-Civilian Health Services 
Partnership Program.'' The Director, OCHAMPUS, or a designee, shall 
issue policies, instructions, procedures, guidelines, standards, or 
criteria as may be necessary to provide support for implementation of 
DoDI 6010.12, to promulgate and manage benefit and financial policy 
issues, and to develop a program evaluation process to ensure the 
Partnership Program accomplishes the purpose for which it was developed.
    (1) Partnership agreements. Military treatment facility commanders, 
based upon the authority provided by their representative Surgeons 
General of the military departments, are responsible for entering into 
individual partnership agreements only when they have determined 
specifically that use of the Partnership Program is more economical 
overall to the Government than referring the need for health care 
services to the civilian community under the normal operation of the 
CHAMPUS Program. All such agreements are subject to the review and 
approval of the

[[Page 60]]

Director, OCHAMPUS, or designee, and the appropriate Surgeon General.
    (i) External Partnership Agreements. The external partnership 
agreement is an agreement between a military treatment facility 
Commander and a CHAMPUS-authorized institutional provider, enabling 
Uniformed Services health care personnel to provide otherwise covered 
medical care to CHAMPUS beneficiaries in a civilian facility. Authorized 
costs associated with the use of the facility will be financed through 
CHAMPUS under normal cost-sharing and reimbursement procedures currently 
applicable under the basic CHAMPUS. Savings will be realized under this 
type of agreement by using available military health care personnel to 
avoid the civilian professional provider charges which would otherwise 
be billed to CHAMPUS.
    (ii) Internal Partnership Agreements. The internal partnership 
agreement is an agreement between a military treatment facility 
commander and a CHAMPUS-authorized civilian health care provider which 
enables the use of civilian health care personnel or other resources to 
provide medical care to CHAMPUS beneficiaries on the premises of a 
military treatment facility. These internal agreements may be 
established when a military treatment facility is unable to provide 
sufficient health care services for CHAMPUS beneficiaries due to 
shortages of personnel and other required resources. In addition to 
allowing the military treatment facility to achieve maximum use of 
available facility space, the internal agreement will result in savings 
to the Government by using civilian medical specialists to provide 
inpatient care in Government-owned facilities, thereby avoiding the 
civilian facility charges which would have otherwise been billed to 
CHAMPUS.
    (2) Beneficiary Cost-Sharing. Beneficiary cost-sharing under the 
Partnership Program is outlined in Sec. 199.4(f)(5) of this part.
    (3) Reimbursement. Reimbursement under the Partnership Program is 
outlined in Sec. 199.14(f) of this part.
    (4) Beneficiary Eligibility and Authorized Providers. Existing 
requirements of this Regulation remain in effect as concerns beneficiary 
eligibility and authorized providers.
    (5) Range of Benefits. Health care services provided CHAMPUS 
beneficiaries under the terms of the Partnership Program must be 
consistent with the CHAMPUS range of benefits outlined in this 
Regulation. The services rendered must be otherwise covered. Charges 
allowed for professional services provided under the Partnership Program 
may include costs of support personnel, equipment, and supplies when 
specifically outlined in the partnership agreement, However, all CHAMPUS 
coverage and provider requirements must be met.
    (q) Equality of benefits. All claims submitted for benefits under 
CHAMPUS shall be adjudicated in a consistent, fair, and equitable 
manner, without regard to the rank of the sponsor.
    (r) TRICARE program. Many rules and procedures established in 
sections of this part are subject to revision in areas where the TRICARE 
program is implemented. The TRICARE program is the means by which 
managed care activities designed to improve the delivery and financing 
of health care services in the Military Health Services System(MHSS) are 
carried out. Rules and procedures for the TRICARE program are set forth 
in Sec. 199.17.

[51 FR 24008, July 1, 1986, as amended at 52 FR 38754, Oct. 19, 1987; 53 
FR 27961, July 26, 1988; 55 FR 43338, Oct. 29, 1990; 60 FR 52094, Oct. 
5, 1995]



Sec. 199.2  Definitions.

    (a) General. In an effort to be as specific as possible as to the 
word and intent of CHAMPUS, the following definitions have been 
developed. While many of the definitions are general and some assign 
meaning to relatively common terms within the health insurance 
environment, others are applicable only to CHAMPUS; however, they all 
appear in this part solely for the purpose of the Program. Except when 
otherwise specified, the definitions in this section apply generally 
throughout this part.
    (b) Specific definitions.
    Abortion. Abortion means the intentional termination of a pregnancy 
by artificial means done for a purpose

[[Page 61]]

other than that of producing a live birth. A spontaneous, missed or 
threatened abortion or termination of an ectopic (tubal) pregnancy are 
not included within the term ``abortion'' as used herein.
    Absent treatment. Services performed by Christian Science 
practitioners for a person when the person is physically present.
    Note: Technically, ``Absent Treatment'' is an obsolete term. The 
current Christian Science terminology is ``treatment through prayer and 
spiritual means,'' which is employed by an authorized Christian Science 
practitioner either with the beneficiary being present or absent. 
However, to be considered for coverage under CHAMPUS, the beneficiary 
must be present physically when a Christian Science service is rendered, 
regardless of the terminology used.
    Abuse. For the purposes of this part, abuse is defined as any 
practice that is inconsistent with accepted sound fiscal, business, or 
professional practice which results in a CHAMPUS claim, unnecessary 
cost, or CHAMPUS payment for services or supplies that are: (1) Not 
within the concepts of medically necessary and appropriate care, as 
defined in this part, or (2) that fail to meet professionally recognized 
standards for health care providers. The term ``abuse'' includes 
deception or misrepresentation by a provider, or any person or entity 
acting on behalf of a provider in relation to a CHAMPUS claim.
    Note: Unless a specific action is deemed gross and flagrant, a 
pattern of inappropriate practice will normally be required to find that 
abuse has occurred. Also, any practice or action that constitutes fraud, 
as defined by this part, would also be abuse.
    Abused dependent. An eligible spouse or child, who meets the 
criteria in Sec. 199.3 of this part, of a former member who received a 
dishonorable or bad-conduct discharge or was dismissed from a Uniformed 
Service as a result of a court-martial conviction for an offense 
involving physical or emotional abuse or was administratively discharged 
as a result of such an offense, or of a member or former member who has 
had their entitlement to receive retired pay terminated because of 
misconduct involving physical or emotional abuse.
    Accidental injury. Physical bodily injury resulting from an external 
force, blow or fall, or the ingestion of a foreign body or harmful 
substance, requiring immediate medical treatment. Accidental injury also 
includes animal and insect bites and sunstrokes. For the purpose of 
CHAMPUS, the breaking of a tooth or teeth does not constitute a physical 
bodily injury.
    Active duty. Full-time duty in the Uniformed Services of the United 
States. It includes duty on the active list, full-time training duty, 
annual training duty, and attendance while in the active Military 
Service, at a school designated as a Service school by law or by the 
Secretary of the Military Department concerned.
    Active duty member. A person on active duty in a Uniformed Service 
under a call or order that does not specify a period of 30 days or less.
    Activities of daily living. Care that consists of providing food 
(including special diets), clothing, and shelter; personal hygiene 
services; observation and general monitoring; bowel training or 
management (unless abnormalities in bowel function are of a severity to 
result in a need for medical or surgical intervention in the absence of 
skilled services); safety precautions; general preventive procedures 
(such as turning to prevent bedsores); passive exercise; companionship; 
recreation; transportation; and such other elements of personal care 
that reasonably can be performed by an untrained adult with minimal 
instruction or supervision. Activities of daily living may also be 
referred to as ``essentials of daily living''.
    Acupuncture. The practice of inserting needles into various body 
parts to pierce specific peripheral nerves for the production of 
counter-irritation to relieve the discomfort of pain, induce surgical 
anesthesia, or for other treatment purposes.
    Note: Acupuncture is not covered by CHAMPUS.
    Adequate Medical Documentation, Medical Treatment Records. Adequate 
medical documentation contains sufficient information to justify the 
diagnosis, the treatment plan, and the services and supplies furnished. 
Under CHAMPUS, it is required that adequate and sufficient clinical 
records be kept

[[Page 62]]

by the health care provider(s) to substantiate that specific care was 
actually and appropriately furnished, was medically necessary and 
appropriate (as defined by this part), and to identify the individual(s) 
who provided the care. All procedures billed must be documented in the 
records. In determining whether medical records are adequate, the 
records will be reviewed under the generally acceptable standards such 
as the applicable Joint Commission on Accreditation of Healthcare 
Organizations (JCAHO) standards, the Peer Review Organization (PRO) 
standards (and the provider's state or local licensing requirements) and 
other requirements specified by this part. In general, the documentation 
requirements for a professional provider are not less in the outpatient 
setting than the inpatient setting.
    Adequate Medical Documentation, Mental Health Records. Adequate 
medical documentation provides the means for measuring the type, 
frequency, and duration of active treatment mechanisms employed and 
progress under the treatment plan. Under CHAMPUS, it is required that 
adequate and sufficient clinical records be kept by the provider to 
substantiate that specific care was actually and appropriately 
furnished, was medically or psychologically necessary (as defined by 
this part), and to identify the individual(s) who provided the care. 
Each service provided or billed must be documented in the records. In 
determining whether medical records are adequate, the records will be 
reviewed under the generally acceptable standards (e.g., the applicable 
JCAHO standards and the provider's state or local licensing 
requirements) and other requirements specified by this part. It must be 
noted that the psychiatric and psychological evaluations, physician 
orders, the treatment plan, integrated progress notes (and physician 
progress notes if separate from the integrated progress notes), and the 
discharge summary are the more critical elements of the mental health 
record. However, nursing and staff notes, no matter how complete, are 
not a substitute for the documentation of services by the individual 
professional provider who furnished treatment to the beneficiary. In 
general, the documentation requirements of a professional provider are 
not less in the outpatient setting than the inpatient setting. 
Furthermore, even though a hospital that provides psychiatric care may 
be accredited under the JCAHO manual for hospitals rather than the 
consolidated standards manual, the critical elements of the mental 
health record listed above are required for CHAMPUS claims.
    Adjunctive dental care. Dental care which is medically necessary in 
the treatment of an otherwise covered medical (not dental) condition, is 
an integral part of the treatment of such medical condition and is 
essential to the control of the primary medical condition; or, is 
required in preparation for or as the result of dental trauma which may 
be or is caused by medically necessary treatment of an injury or disease 
(iatrogenic).
    Admission. The formal acceptance by a CHAMPUS authorized 
institutional provider of a CHAMPUS beneficiary for the purpose of 
diagnosis and treatment of illness, injury, pregnancy, or mental 
disorder.
    Adopted Child. A child taken into one's own family by legal process 
and treated as one's own child. In case of adoption, CHAMPUS eligibility 
begins as of 12:01 a.m. of the day of the final adoption decree.
    Note: There is no CHAMPUS benefit entitlement during any interim 
waiting period.
    All-Inclusive Per Diem Rate. The OCHAMPUS determined rate that 
encompasses the daily charge for inpatient care and, unless specifically 
excepted, all other treatment determined necessary and rendered as part 
of the treatment plan established for a patient, and accepted by 
OCHAMPUS.
    Allowable charge. The CHAMPUS-determined level of payment to 
physicians, other individual professional providers and other providers, 
based on one of the approved reimbursement methods set forth in Sec. 
199.14 of this part. Allowable charge also may be referred to as the 
CHAMPUS-determined reasonable charge.
    Allowable cost. The CHAMPUS-determined level of payment to hospitals 
or other institutions, based on one of the approved reimbursement 
methods set fourth in Sec. 199.14 of this part. Allowable

[[Page 63]]

cost may also be referred to as the CHAMPUS-determined reasonable cost.
    Ambulance. A specially designed vehicle for transporting the sick or 
injured that contains a stretcher, linens, first aid supplies, oxygen 
equipment, and such lifesaving equipment required by state and local 
law, and that is staffed by personnel trained to provide first aid 
treatment.
    Amount in dispute. The amount of money, determined under this part, 
that CHAMPUS would pay for medical services and supplies involved in an 
adverse determination being appealed if the appeal were resolved in 
favor of the appealing party. See Sec. 199.10 for additional 
information concerning the determination of ``amount in dispute'' under 
this part.
    Anesthesia services. The administration of an anesthetic agent by 
injection or inhalation, the purpose and effect of which is to produce 
surgical anesthesia characterized by muscular relaxation, loss of 
sensation, or loss of consciousness when administered by or under the 
direction of a physician or dentist in connection with otherwise covered 
surgery or obstetrical care, or shock therapy. Anesthesia services do 
not include hypnosis or acupuncture.
    Appealable issue. Disputed questions of fact which, if resolved in 
favor of the appealing party, would result in the authorization of 
CHAMPUS benefits, or approval as an authorized provider in accordance 
with this part. An appealable issue does not exist if no facts are in 
dispute, if no CHAMPUS benefits would be payable, or if there is no 
authorized provider, regardless of the resolution of any disputed facts. 
See Sec. 199.10 for additional information concerning the determination 
of ``appealable issue'' under this part.
    Appealing party. Any party to the initial determination who files an 
appeal of an adverse determination or requests a hearing under the 
provisions of this part.
    Appropriate medical care. (i) Services performed in connection with 
the diagnosis or treatment of disease or injury, pregnancy, mental 
disorder, or well-baby care which are in keeping with the generally 
accepted norms for medical practice in the United States;
    (ii) The authorized individual professional provider rendering the 
medical care is qualified to perform such medical services by reason of 
his or her training and education and is licensed or certified by the 
state where the service is rendered or appropriate national organization 
or otherwise meets CHAMPUS standards; and
    (iii) The services are furnished economically. For purposes of this 
part, ``economically'' means that the services are furnished in the 
least expensive level of care or medical environment adequate to provide 
the required medical care regardless of whether or not that level of 
care is covered by CHAMPUS.
    Approved teaching programs. For purposes of CHAMPUS, an approved 
teaching program is a program of graduate medical education which has 
been duly approved in its respective specialty or subspecialty by the 
Accreditation Council for Graduate Medical Education of the American 
Medical Association, by the Committee on Hospitals of the Bureau of 
Professional Education of the American Osteopathic Association, by the 
Council on Dental Education of the American Dental Association, or by 
the Council on Podiatry Education of the American Podiatry Association.
    Assistant Secretary of Defense (Health Affairs). An authority of the 
Assistant Secretary of Defense (Health Affairs) includes any person 
designated by the Assistant Secretary to exercise the authority 
involved.
    Attending physician. The physician who has the primary 
responsibility for the medical diagnosis and treatment of the patient. A 
consultant or an assistant surgeon, for example, would not be an 
attending physician. Under very extraordinary circumstances, because of 
the presence of complex, serious, and multiple, but unrelated, medical 
conditions, a patient may have more than one attending physician 
concurrently rendering medical treatment during a single period of time. 
An attending physician also may be a teaching physician.
    Augmentative communication device (ACD). A voice prosthesis as 
determined by the Secretary of Defense to be necessary because of 
significant

[[Page 64]]

conditions resulting from trauma, congenital anomalies, or disease. Also 
referred to as Speech Generating Device.
    Authorized provider. A hospital or institutional provider, 
physician, or other individual professional provider, or other provider 
of services or supplies specifically authorized to provide benefits 
under CHAMPUS in Sec. 199.6 of this part.
    Automobile liability insurance. Automobile liability insurance means 
insurance against legal liability for health and medical expenses 
resulting from personal injuries arising from operation of a motor 
vehicle. Automobile liability insurance includes:
    (1) Circumstances in which liability benefits are paid to an injured 
party only when the insured party's tortious acts are the cause of the 
injuries; and
    (2) Uninsured and underinsured coverage, in which there is a third-
party tortfeasor who caused the injuries (i.e., benefits are not paid on 
a no-fault basis), but the insured party is not the tortfeasor.
    Backup hospital. A hospital which is otherwise eligible as a CHAMPUS 
institutional provider and which is fully capable of providing emergency 
care to a patient who develops complications beyond the scope of 
services of a given category of CHAMPUS-authorized freestanding 
institutional provider and which is accessible from the site of the 
CHAMPUS-authorized freestanding institutional provider within an average 
transport time acceptable for the types of medical emergencies usually 
associated with the type of care provided by the freestanding facility.
    Balance billing. A provider seeking any payment, other than any 
payment relating to applicable deductible and cost sharing amounts, from 
a beneficiary for CHAMPUS covered services for any amount in excess of 
the applicable CHAMPUS allowable cost or charge.
    Basic program. The primary medical benefits authorized under chapter 
55 of title 10 U.S. Code, and set forth in Sec. 199.4 of this part.
    Beneficiary. An individual who has been determined to be eligible 
for CHAMPUS benefits, as set forth in Sec. 199.3 of this part.
    Beneficiary liability. The legal obligation of a beneficiary, his or 
her estate, or responsible family member to pay for the costs of medical 
care or treatment received. Specifically, for the purposes of services 
and supplies covered by CHAMPUS, beneficiary liability includes any 
annual deductible amount, cost-sharing amounts, or, when a provider does 
not submit a claim on a participating basis on behalf of the 
beneficiary, amounts above the CHAMPUS-determined allowable cost or 
charge. Beneficiary liability also includes any expenses for medical or 
related services and supplies not covered by CHAMPUS.
    Birthing center. A health care provider which meets the applicable 
requirements established by Sec. 199.6(b) of this part.
    Birthing room. A room and environment designed and equipped to 
provide care, to accommodate support persons, and within which a woman 
with a low-risk, normal, full-term pregnancy can labor, deliver and 
recover with her infant.
    Brace. An orthopedic appliance or apparatus (an orthosis) used to 
support, align, or hold parts of the body in correct position. For the 
purposes of CHAMPUS, it does not include orthodontic or other dental 
appliances.
    Capped Rate. The maximum per diem or all-inclusive rate that CHAMPUS 
will allow for care.
    Case management. Case management is a collaborative process which 
assesses, plans, implements, coordinates, monitors, and evaluates the 
options and services required to meet an individual's health needs, 
using communication and available resources to promote quality, cost 
effective outcomes.
    Case managers. A licensed registered nurse, licensed clinical social 
worker, licensed psychologist or licensed physician who has a minimum of 
two (2) years case management experience.
    Case-mix index. Case-mix index is a scale that measures the relative 
difference in resources intensity among different groups receiving home 
health services.
    Certified nurse-midwife. An individual who meets the applicable 
requirements established by Sec. 199.6(c) of this part.

[[Page 65]]

    Certified psychiatric nurse specialist. A licensed, registered nurse 
who meets the criteria in Sec. 199.6(c)(3)(iii)(G).
    CHAMPUS DRG-Based Payment System. A reimbursement system for 
hospitals which assigns prospectively-determined payment levels to each 
DRG based on the average cost of treating all CHAMPUS patients in a 
given DRG.
    CHAMPUS fiscal intermediary. An organization with which the 
Director, OCHAMPUS, has entered into a contract for the adjudication and 
processing of CHAMPUS claims and the performance of related support 
activities.
    CHAMPUS Health Benefits Advisors (HBAs). Those individuals located 
at Uniformed Services medical facilities (on occasion at other 
locations) and assigned the responsibility for providing CHAMPUS 
information, information concerning availability of care from the 
Uniformed Services direct medical care system, and generally assisting 
beneficiaries (or sponsors). The term also includes ``Health Benefits 
Counselor'' and ``CHAMPUS Advisor.''
    Chemotherapy. The administration of approved antineoplastic drugs 
for the treatment of malignancies (cancer) via perfusion, infusion, or 
parenteral methods of administration.
    Child. An unmarried child of a member or former member, who meets 
the criteria (including age requirements) in Sec. 199.3 of this part.
    Chiropractor. A practitioner of chiropractic (also called 
chiropraxis); essentially a system of therapeutics based upon the claim 
that disease is caused by abnormal function of the nerve system. It 
attempts to restore normal function of the nerve system by manipulation 
and treatment of the structures of the human body, especially those of 
the spinal column.
    Note: Services of chiropractors are not covered by CHAMPUS.
    Christian science nurse. An individual who has been accredited as a 
Christian Science Nurse by the Department of Care of the First Church of 
Christ, Scientist, Boston, Massachusetts, and listed (or eligible to be 
listed) in the Christian Science Journal at the time the service is 
provided. The duties of Christian Science nurses are spiritual and are 
nonmedical and nontechnical nursing care performed under the direction 
of an accredited Christian Science practitioner. There exist two levels 
of Christian Science nurse accreditation:
    (i) Graduate Christian Science nurse. This accreditation is granted 
by the Department of Care of the First Church of Christ, Scientist, 
Boston, Massachusetts, after completion of a 3-year course of 
instruction and study.
    (ii) Practical Christian Science nurse. This accreditation is 
granted by the Department of Care of the First Church of Christ, 
Scientist, Boston, Massachusetts, after completion of a 1-year course of 
instruction and study.
    Christian Science practitioner. An individual who has been 
accredited as a Christian Science Practitioner for the First Church, 
Scientist, Boston, Massachusetts, and listed (or eligible to be listed) 
in the Christian Science Journal at the time the service is provided. An 
individual who attains this accreditation has demonstrated results of 
his or her healing through faith and prayer rather than by medical 
treatment. Instruction is executed by an accredited Christian Science 
teacher and is continuous.
    Christian Science sanatorium. A sanatorium either operated by the 
First Church of Christ, Scientist, or listed and certified by the First 
Church of Christ, Scientist, Boston, Massachusetts.
    Chronic medical condition. A medical condition that is not curable, 
but which is under control through active medical treatment. Such 
chronic conditions may have periodic acute episodes and may require 
intermittent inpatient hospital care. However, a chronic medical 
condition can be controlled sufficiently to permit generally 
continuation of some activities of persons who are not ill (such as work 
and school).
    Chronic renal disease (CRD). The end stage of renal disease which 
requires a continuing course of dialysis or a kidney transplantation to 
ameliorate uremic symptoms and maintain life.
    Clinical psychologist. A psychologist, certified or licensed at the 
independent practice level in his or her state, who meets the criteria 
in Sec. 199.6(c)(3)(iii)(A).
    Clinical social worker. An individual who is licensed or certified 
as a clinical

[[Page 66]]

social worker and meets the criteria listed in Sec. 199.6.
    Clinically Meaningful Endpoints. As used the definition of reliable 
evidence in this paragraph (b) and Sec. 199.4(g)(15), the term 
clinically meaningful endpoints means objectively measurable outcomes of 
clinical interventions or other medical procedures, expressed in terms 
of survival, severity of illness or condition, extent of adverse side 
effects, diagnostic capability, or other effect on bodily functions 
directly associated with such results.
    Collateral visits. Sessions with the patient's family or significant 
others for purposes of information gathering or implementing treatment 
goals.
    Combined daily charge. A billing procedure by an inpatient facility 
that uses an inclusive flat rate covering all professional and ancillary 
charges without any itemization.
    Complications of pregnancy. One of the following, when commencing or 
exacerbating during the term of the pregnancy:
    (i) Caesarean delivery; hysterectomy.
    (ii) Pregnancy terminating before expiration of 26 weeks, except a 
voluntary abortion.
    (iii) False labor or threatened miscarriage.
    (iv) Nephritis or pyelitis of pregnancy.
    (v) Hyperemesis gravidarum.
    (vi) Toxemia.
    (vii) Aggravation of a heart condition or diabetes.
    (viii) Premature rupture of membrane.
    (ix) Ectopic pregnancy.
    (x) Hemorrhage.
    (xi) Other conditions as may be determined by the Director, 
OCHAMPUS, or a designee.
    Confinement. That period of time from the day of admission to a 
hospital or other institutional provider, to the day of discharge, 
transfer, or separation from the facility, or death. Successive 
admissions also may qualify as one confinement provided not more than 60 
days have elapsed between the successive admissions, except that 
successive admissions related to a single maternity episode shall be 
considered one confinement, regardless of the number of days between 
admissions.
    Conflict of Interest. Includes any situation where an active duty 
member (including a reserve member while on active duty) or civilian 
employee of the United States Government, through an official federal 
position, has the apparent or actual opportunity to exert, directly or 
indirectly, any influence on the referral of CHAMPUS beneficiaries to 
himself or herself or others with some potential for personal gain or 
appearance of impropriety. For purposes of this part, individuals under 
contract to a Uniformed Service may be involved in a conflict of 
interest situation through the contract position.
    Congenital anomaly. A condition existing at or from birth that is a 
significant deviation from the common form or norm and is other than a 
common racial or ethnic feature. For purposes of CHAMPUS, congenital 
anomalies do not include anomalies relating to teeth (including 
malocclusion or missing tooth buds) or structures supporting the teeth, 
or to any form of hermaphroditism or sex gender confusion. Examples of 
congenital anomalies are harelip, birthmarks, webbed fingers or toes, or 
such other conditions that the Director, OCHAMPUS, or a designee, may 
determine to be congenital anomalies.
    Note: Also refer to Sec. 199.4(e)(7) of this part.
    Consultation. A deliberation with a specialist physician or dentist 
requested by the attending physician primarily responsible for the 
medical care of the patient, with respect to the diagnosis or treatment 
in any particular case. A consulting physician or dentist may perform a 
limited examination of a given system or one requiring a complete 
diagnostic history and examination. To qualify as a consultation, a 
written report to the attending physician of the findings of the 
consultant is required.
    Note: Staff consultations required by rules and regulations of the 
medical staff of a hospital or other institutional provider do not 
qualify as consultation.
    Consultation appointment. An appointment for evaluation of medical 
symptoms resulting in a plan for management which may include elements 
of further evaluation, treatment and follow-up evaluation. Such an 
appointment does not include surgical intervention or other invasive 
diagnostic or

[[Page 67]]

therapeutic procedures beyond the level of very simply office 
procedures, or basic laboratory work but rather provides the beneficiary 
with an authoritative opinion.
    Consulting physician or dentist. A physician or dentist, other than 
the attending physician, who performs a consultation.
    Conviction. For purposes of this part, ``conviction'' or 
``convicted'' means that (1) a judgment of conviction has been entered, 
or (2) there has been a finding of guilt by the trier of fact, or (3) a 
plea of guilty or a plea of nolo contendere has been accepted by a court 
of competent jurisdiction, regardless of whether an appeal is pending.
    Coordination of benefits. The coordination, on a primary or 
secondary payer basis, of the payment of benefits between two or more 
health care coverages to avoid duplication of benefit payments.
    Corporate services provider. A health care provider that meets the 
applicable requirements established by Sec. 199.6(f).
    Cosmetic, reconstructive, or plastic surgery. Surgery that can be 
expected primarily to improve the physical appearance of a beneficiary, 
or that is performed primarily for psychological purposes, or that 
restores form, but does not correct or improve materially a bodily 
function.
    Cost-share. The amount of money for which the beneficiary (or 
sponsor) is responsible in connection with otherwise covered inpatient 
and outpatient services (other than the annual fiscal year deductible or 
disallowed amounts) as set forth in Sec. Sec. 199.4(f) and 199.5(b) of 
this part. Cost-sharing may also be referred to as ``co-payment.''
    Custodial care. The term ``custodial care'' means treatment or 
services, regardless of who recommends such treatment or services or 
where such treatment or services are provided, that:
    (1) Can be rendered safely and reasonably by a person who is not 
medically skilled; or
    (2) Is or are designed mainly to help the patient with the 
activities of daily living.
    Days. Calendar days.
    Deceased member. A person who, at the time of his or her death, was 
an active duty member of a Uniformed Service under a call or order that 
did not specify a period of 30 days or less.
    Deceased reservist. A reservist in a Uniformed Service who incurs or 
aggravates an injury, illness, or disease, during, or on the way to or 
from, active duty training for a period of 30 days or less or inactive 
duty training and dies as a result of that specific injury, illness or 
disease.
    Deceased retiree. A person who, at the time of his or her death, was 
entitled to retired or retainer pay or equivalent pay based on duty in a 
Uniformed Service. For purposes of this part, it also includes a person 
who died before attaining age 60 and at the time of his or her death 
would have been eligible for retired pay as a reservist but for the fact 
that he or she was not 60 years of age, and had elected to participate 
in the Survivor Benefit Plan established under 10 U.S.C. chapter 73.
    Deductible. Payment by a beneficiary of the first $50 of the 
CHAMPUS-determined allowable costs or charges for otherwise covered 
outpatient services or supplies provided in any one fiscal year; or for 
a family, the aggregate payment by two or more beneficiaries who submit 
claims of the first $100.
    Deductible certificate. A statement issued to the beneficiary (or 
sponsor) by a CHAMPUS fiscal intermediary certifying to deductible 
amounts satisfied by a CHAMPUS beneficiary for any applicable fiscal 
year.
    Defense Enrollment Eligibility Reporting System (DEERS). An 
automated system maintained by the Department of Defense for the purpose 
of:
    (1) Enrolling members, former members and their dependents, and
    (2) Verifying members', former members' and their dependents' 
eligibility for health care benefits in the direct care facilities and 
for CHAMPUS.
    Dental care. Services relating to the teeth and their supporting 
structures.
    Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of Dental 
Surgery (D.D.S.) who is licensed to practice dentistry by an appropriate 
authority.
    Dependent. Individuals whose relationship to the sponsor (including 
NATO members who are stationed in or passing through the United States 
on official business when authorized) leads

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to entitlement to benefits under this part. (See Sec. 199.3 of this 
part for specific categories of dependents).
    Deserter or desertion status. A service member is a deserter, or in 
a desertion status, when the Uniformed Service concerned has made an 
administrative determination to that effect, or the member's period of 
unauthorized absence has resulted in a court-martial conviction of 
desertion. Administrative declarations of desertion normally are made 
when a member has been an unauthorized absentee for over 30 days, but 
particular circumstances may result in an earlier declaration. 
Entitlement to CHAMPUS benefits ceases as of 12:01 a.m. on the day 
following the day the desertion status is declared. Benefits are not to 
be authorized for treatment received during a period of unauthorized 
absence that results in a court-martial conviction for desertion. 
Dependent eligibility for benefits is reestablished when a deserter is 
returned to military control and continues, even though the member may 
be in confinement, until any discharge is executed. When a deserter 
status is later found to have been determined erroneously, the status of 
deserter is considered never to have existed, and the member's 
dependents will have been eligible continuously for benefits under 
CHAMPUS.
    Diagnosis-Related Groups (DRGs). Diagnosis-related groups (DRGs) are 
a method of dividing hospital patients into clinically coherent groups 
based on the consumption of resources. Patients are assigned to the 
groups based on their principal diagnosis (the reason for admission, 
determined after study), secondary diagnoses, procedures performed, and 
the patient's age, sex, and discharge status.
    Diagnostic admission. An admission to a hospital or other authorized 
institutional provider, or an extension of a stay in such a facility, 
primarily for the purpose of performing diagnostic tests, examinations, 
and procedures.
    Director. The Director of the TRICARE Management Activity or 
Director, Office of CHAMPUS. Any references to the Director, Office of 
CHAMPUS, or OCHAMPUS, shall mean the Director, TRICARE Management 
Activity. Any reference to Director shall also include any person 
designated by the Director to carry out a particular authority. In 
addition, any authority of the Director may be exercised by the 
Assistant Secretary of Defense (Health Affairs).
    Director, OCHAMPUS. An authority of the Director, OCHAMPUS includes 
any person designated by the Director, OCHAMPUS to exercise the 
authority involved.
    Director, TRICARE Management Activity. This term includes the 
Director, TRICARE Management Activity, the official sometimes referred 
to in this part as the Director, Office of CHAMPUS (or OCHAMPUS), or any 
designee of the Director, TRICARE Management Activity or the Assistant 
Secretary of Defense for Health Affairs who is designated for purposes 
of an action under this part.
    Doctor of Dental Medicine (D.M.D.). A person who has received a 
degree in dentistry, that is, that department of the healing arts which 
is concerned with the teeth, oral cavity, and associated structures.
    Doctor of Medicine (M.D.). A person who has graduated from a college 
of allopathic medicine and who is entitled legally to use the 
designation M.D.
    Doctor of Osteopathy (D.O.). A practitioner of osteopathy, that is, 
a system of therapy based on the theory that the body is capable of 
making its own remedies against disease and other toxic conditions when 
it is in normal structural relationship and has favorable environmental 
conditions and adequate nutrition. It utilizes generally accepted 
physical, medicinal, and surgical methods of diagnosis and therapy, 
while placing chief emphasis on the importance of normal body mechanics 
and manipulative methods of detecting and correcting faulty structure.
    Domiciliary care. The term ``domiciliary care'' means care provided 
to a patient in an institution or homelike environment because:
    (1) Providing support for the activities of daily living in the home 
is not available or is unsuitable; or
    (2) Members of the patient's family are unwilling to provide the 
care.
    Donor. An individual who supplies living tissue or material to be 
used in

[[Page 69]]

another body, such as a person who furnishes a kidney for renal 
transplant.
    Double coverage. When a CHAMPUS beneficiary also is enrolled in 
another insurance, medical service, or health plan that duplicates all 
or part of a beneficiary's CHAMPUS benefits.
    Double coverage plan. The specific insurance, medical service, or 
health plan under which a CHAMPUS beneficiary has entitlement to medical 
benefits that duplicate CHAMPUS benefits in whole or in part. Double 
coverage plans do not include:
    (i) Medicaid.
    (ii) Coverage specifically designed to supplement CHAMPUS benefits.
    (iii) Entitlement to receive care from the Uniformed Services 
medical facilities;
    (iv) Entitlement to receive care from Veterans Administration 
medical care facilities; or
    (v) Part C of the Individuals with Disabilities Education Act for 
services and items provided in accordance with Part C of the IDEA that 
are medically or psychologically necessary in accordance with the 
Individual Family Service Plan and that are otherwise allowable under 
the CHAMPUS Basic Program or the Extended Care Health Option (ECHO).
    Dual Compensation. Federal Law (5 U.S.C. 5536) prohibits active duty 
members or civilian employees of the United States Government from 
receiving additional compensation from the government above their normal 
pay and allowances. This prohibition applies to CHAMPUS cost-sharing of 
medical care provided by active duty members or civilian government 
employees to CHAMPUS beneficiaries.
    Duplicate equipment. An item of durable equipment or durable medical 
equipment, as defined in this section that serves the same purpose that 
is served by an item of durable equipment or durable medical equipment 
previously cost-shared by TRICARE. For example, various models of 
stationary oxygen concentrators with no essential functional differences 
are considered duplicate equipment, whereas stationary and portable 
oxygen concentrators are not considered duplicates of each other because 
the latter is intended to provide the user with mobility not afforded by 
the former. Also, a manual wheelchair and an electric wheelchair, both 
of which otherwise meet the definition of durable equipment or durable 
medical equipment, would not be considered duplicates of each other if 
each is found to provide an appropriate level of mobility. For the 
purpose of this Part, durable equipment or durable medical equipment 
that are essential to provide a fail-safe in-home life support system or 
that replaces in like kind an item of equipment that is not serviceable 
due to normal wear, accidental damage, a change in the beneficiary's 
condition, or has been declared adulterated by the U.S. FDA, or is being 
or has been recalled by the manufacturer, is not considered duplicate 
equipment.
    Durable equipment. A device or apparatus which does not qualify as 
durable medical equipment and which is essential to the efficient arrest 
or reduction of functional loss resulting from, or the disabling effects 
of a qualifying condition as provided in Sec. 199.5.
    Durable medical equipment. Equipment that--
    (1) Can withstand repeated use;
    (2) Is primarily and customarily used to serve a medical purpose; 
and
    (3) Generally is not useful to an individual in the absence of an 
illness or injury.
    Economic interest. (1) Any right, title, or share in the income, 
remuneration, payment, or profit of a CHAMPUS-authorized provider, or of 
an individual or entity eligible to be a CHAMPUS-authorized provider, 
resulting, directly or indirectly, from a referral relationship; or any 
direct or indirect ownership, right, title, or share, including a 
mortgage, deed of trust, note, or other obligation secured (in whole or 
in part) by one entity for another entity in a referral or accreditation 
relationship, which is equal to or exceeds 5 percent of the total 
property and assets of the other entity.
    (2) A referral relationship exists when a CHAMPUS beneficiary is 
sent, directed, assigned or influenced to use a specific CHAMPUS-
authorized provider, or a specific individual or entity eligible to be a 
CHAMPUS-authorized provider.

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    (3) An accreditation relationship exists when a CHAMPUS-authorized 
accreditation organization evaluates for accreditation an entity that is 
an applicant for, or recipient of CHAMPUS-authorized provider status.
    Emergency inpatient admission. An unscheduled, unexpected, medically 
necessary admission to a hospital or other authorized institutional 
provider for treatment of a medical condition meeting the definition of 
medical emergency and which is determined to require immediate inpatient 
treatment by the attending physician.
    Entity. For purposes of Sec. 199.9(f)(1), ``entity'' includes a 
corporation, trust, partnership, sole proprietorship or other kind of 
business enterprise that is or may be eligible to receive reimbursement 
either directly or indirectly from CHAMPUS.
    Extended Care Health Option (ECHO). The TRICARE program of 
supplemental benefits for qualifying active duty family members as 
described in Sec. 199.5.
    External Partnership Agreement. The External Partnership Agreement 
is an agreement between a military treatment facility commander and a 
CHAMPUS authorized institutional provider, enabling Uniformed Services 
health care personnel to provide otherwise covered medical care to 
CHAMPUS beneficiaries in a civilian facility under the Military-Civilian 
Health Services Partnership Program. Authorized costs associated with 
the use of the facility will be financed through CHAMPUS under normal 
cost-sharing and reimbursement procedures currently applicable under the 
basic CHAMPUS.
    External Resource Sharing Agreement. A type External Partnership 
Agreement, established in the context of the TRICARE program by 
agreement of a military medical treatment facility commander and an 
authorized TRICARE contractor. External Resource Sharing Agreements may 
incorporate TRICARE features in lieu of standard CHAMPUS features that 
would apply to standard External Partnership Agreements.
    Extramedical individual providers of care. Individuals who do 
counseling or nonmedical therapy and whose training and therapeutic 
concepts are outside the medical field, as specified in Sec. 199.6 of 
this part.
    Extraordinary physical or psychological condition. A complex 
physical or psychological clinical condition of such severity which 
results in the beneficiary being homebound as defined in this section.
    Former member. A retiree, deceased member, deceased retiree, or 
deceased reservist in certain circumstances (see section 199.3 for 
additional information related to certain deceased reservists' 
dependents' eligibility). Under conditions specified under Sec. 199.3 
of this part, former member may also include a member of the Uniformed 
Services who has been discharged from active duty (or, in some cases, 
full-time National Guard duty), whether voluntarily or involuntarily, 
under other than adverse conditions and qualifies for CHAMPUS benefits 
under the Transitional Assistance Management Program or the Continued 
Health Care Benefit Program.
    Former spouse. A former husband or wife of a Uniformed Service 
member or former member who meets the criteria as set forth in Sec. 
199.3(b)(2)(ii) of this part.
    Fraud. For purposes of this part, fraud is defined as (1) a 
deception or misrepresentation by a provider, beneficiary, sponsor, or 
any person acting on behalf of a provider, sponsor, or beneficiary with 
the knowledge (or who had reason to know or should have known) that the 
deception or misrepresentation could result in some unauthorized CHAMPUS 
benefit to self or some other person, or some unauthorized CHAMPUS 
payment, or (2) a claim that is false or fictitious, or includes or is 
supported by any written statement which asserts a material fact which 
is false or fictitious, or includes or is supported by any written 
statement that (a) omits a material fact and (b) is false or fictitious 
as a result of such omission and (c) is a statement in which the person 
making, presenting, or submitting such statement has a duty to include 
such material fact. It is presumed that, if a deception or 
misrepresentation is established and a CHAMPUS claim is filed, the 
person responsible for the claim had the requisite knowledge. This 
presumption is

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rebuttable only by substantial evidence. It is further presumed that the 
provider of the services is responsible for the actions of all 
individuals who file a claim on behalf of the provider (for example, 
billing clerks); this presumption may only be rebutted by clear and 
convincing evidence.
    Freestanding. Not ``institution-affiliated'' or ``institution-
based.''
    Full-time course of higher education. A complete, progressive series 
of studies to develop attributes such as knowledge, skill, mind, and 
character, by formal schooling at a college or university, and which 
meets the criteria set out in Sec. 199.3 of this part. To qualify as 
full-time, the student must be carrying a course load of a minimum of 12 
credit hours or equivalent each semester.
    General staff nursing service. All nursing care (other than that 
provided by private duty nurses) including, but not limited to, general 
duty nursing, emergency room nursing, recovery room nursing, intensive 
nursing care, and group nursing arrangements performed by nursing 
personnel on the payroll of the hospital or other authorized 
institution.
    Good faith payments. Those payments made to civilian sources of 
medical care who provided medical care to persons purporting to be 
eligible beneficiaries but who are determined later to be ineligible for 
CHAMPUS benefits. (The ineligible person usually possesses an erroneous 
or illegal identification card.) To be considered for good faith 
payments, the civilian source of care must have exercised reasonable 
precautions in identifying a person claiming to be an eligible 
beneficiary.
    Habilitation. The provision of functional capacity, absent from 
birth due to congenital anomaly or developmental disorder, which 
facilitates performance of an activity in the manner, or within the 
range considered normal, for a human being.
    Handicap. For the purposes of this part, the term ``handicap'' is 
synonymous with the term ``disability.''
    High-risk pregnancy. A pregnancy is high-risk when the presence of a 
currently active or previously treated medical, anatomical, 
physiological illness or condition may create or increase the likelihood 
of a detrimental effect on the mother, fetus, or newborn and presents a 
reasonable possibility of the development of complications during labor 
or delivery.
    Homebound. A beneficiary's condition is such that there exists a 
normal inability to leave home and, consequently, leaving home would 
require considerable and taxing effort. Any absence of an individual 
from the home attributable to the need to receive health care treatment, 
including regular absences for the purpose of participating in 
therapeutic, psychosocial, or medical treatment or in an adult day-care 
program certified by a state, or accredited to furnish adult day-care 
services in the state shall not disqualify an individual from being 
considered to be confined to his home. Any other absence of an 
individual from the home shall not disqualify an individual if the 
absence is infrequent or of relatively short duration. For the purposes 
of the preceding sentence, any absence for purpose of attending a 
religious service shall be deemed to be an absence of infrequent or 
short duration. Also, absences from the home for non-medical purposes, 
such as an occasional trip to the barber, a walk around the block or a 
drive, would not necessarily negate the beneficiary's homebound status 
if the absences are undertaken on an infrequent basis and are of 
relatively short duration. In addition to the above, absences, whether 
regular or infrequent, from the beneficiary's primary residence for the 
purpose of attending an educational program in a public or private 
school that is licensed and/or certified by a state, shall not negate 
the beneficiary's homebound status.
    Home health discipline. One of six home health disciplines covered 
under the home health benefit (skilled nursing services, physical 
therapy services, occupational therapy services, speech-language 
pathology services, and medical social services).
    Home health market basket index. An index that reflects changes over 
time in the prices of an appropriate mix of goods and services included 
in home health services.
    Hospice care. Hospice care is a program which provides an integrated 
set of services and supplies designed to

[[Page 72]]

care for the terminally ill. This type of care emphasizes palliative 
care and supportive services, such as pain control and home care, rather 
than cure-oriented services provided in institutions that are otherwise 
the primary focus under CHAMPUS. The benefit provides coverage for a 
humane and sensible approach to care during the last days of life for 
some terminally ill patients.
    Hospital, acute care (general and special). An institution that 
meets the criteria as set forth in Sec. 199.6(b)(4)(i) of this part.
    Hospital, long-term (tuberculosis, chronic care, or rehabilitation). 
An institution that meets the criteria as set forth in Sec. 
199.6(b)(4)(iii) of this part.
    Hospital, psychiatric. An institution that meets the criteria as set 
forth in Sec. 199.6(b)(4)(ii) of this part.
    Illegitimate child. A child not recognized as a lawful offspring; 
that is, a child born of parents not married to each other.
    Immediate family. The spouse, natural parent, child and sibling, 
adopted child and adoptive parent, stepparent, stepchild, grandparent, 
grandchild, stepbrother and stepsister, father-in-law, mother-in-law of 
the beneficiary, or provider, as appropriate. For purposes of this 
definition only, to determine who may render services to a beneficiary, 
the step-relationship continues to exist even if the marriage upon which 
the relationship is based terminates through divorce or death of one of 
the parents.
    Independent laboratory. A freestanding laboratory approved for 
participation under Medicare and certified by the Health Care Financing 
Administration.
    Infirmaries. Facilities operated by student health departments of 
colleges and universities to provide inpatient or outpatient care to 
enrolled students. When specifically approved by the Director, OCHAMPUS, 
or a designee, a boarding school infirmary also is included.
    Initial determination. A formal written decision on a CHAMPUS claim, 
a request for benefit authorization, a request by a provider for 
approval as an authorized CHAMPUS provider, or a decision disqualifying 
or excluding a provider as an authorized provider under CHAMPUS. 
Rejection of a claim or a request for benefit or provider authorization 
for failure to comply with administrative requirements, including 
failure to submit reasonably requested information, is not an initial 
determination. Responses to general or specific inquiries regarding 
CHAMPUS benefits are not initial determinations.
    In-out surgery. Surgery performed in the outpatient department of a 
hospital or other institutional provider, in a physician's office or the 
office of another individual professional provider, in a clinic, or in a 
``freestanding'' ambulatory surgical center which does not involve a 
formal inpatient admission for a period of 24 hours or more.
    Inpatient. A patient who has been admitted to a hospital or other 
authorized institution for bed occupancy for purposes of receiving 
necessary medical care, with the reasonable expectation that the patient 
will remain in the institution at least 24 hours, and with the 
registration and assignment of an inpatient number or designation. 
Institutional care in connection with in and out (ambulatory) surgery is 
not included within the meaning of inpatient whether or not an inpatient 
number or designation is made by the hospital or other institution. If 
the patient has been received at the hospital, but death occurs before 
the actual admission occurs, an inpatient admission exists as if the 
patient had lived and had been formally admitted.
    Institution-affiliated. Related to a CHAMPUS-authorized 
institutional provider through a shared governing body but operating 
under a separate and distinct license or accreditation.
    Institution-based. Related to a CHAMPUS-authorized institutional 
provider through a shared governing body and operating under a common 
license and shared accreditation.
    Institutional provider. A health care provider which meets the 
applicable requirements established by Sec. 199.6(b) of this part.
    Intensive care unit (ICU). A special segregated unit of a hospital 
in which patients are concentrated by reason of serious illness, usually 
without regard to diagnosis. Special lifesaving techniques and equipment 
regularly and

[[Page 73]]

immediately are available within the unit, and patients are under 
continuous observation by a nursing staff specially trained and selected 
for the care of this type patient. The unit is maintained on a 
continuing rather than an intermittent or temporary basis. It is not a 
postoperative recovery room nor a postanesthesia room. In some large or 
highly specialized hospitals, the ICUs may be further refined for 
special purposes, such as for respiratory conditions, cardiac surgery, 
coronary care, burn care, or neurosurgery. For the purposes of CHAMPUS, 
these specialized units would be considered ICUs if they otherwise 
conformed to the definition of an ICU.
    Intermittent home health aide and skilled nursing services. 
Intermittent means:
    (1) Up to and including 28 hours per week of skilled nursing and 
home health aide services combined, provided on a less-than-daily basis;
    (2) Up to 35 hours per week of skilled nursing and home health aide 
services combined that are provided on a less-than-daily basis, subject 
to review by managed care support contractors on a case-by-case basis, 
based upon documentation justifying the need for and reasonableness of 
such additional care; or
    (3) Up to and including full-time (i.e., eight hours per day) 
skilled nursing and home health aide services combined which are 
provided and needed seven days per week for temporary, but not 
indefinite, periods of time of up to 21 days with allowances for 
extensions in exceptional circumstances where the need for care in 
excess of 21 days is finite and predictable.
    Intern. A graduate of a medical or dental school serving in a 
hospital in preparation to being licensed to practice medicine or 
dentistry.
    Internal Partnership Agreement. The Internal Partnership Agreement 
is an agreement between a military treatment facility commander and a 
CHAMPUS-authorized civilian health care provider which enables the use 
of civilian health care personnel or other resources to provide medical 
care to CHAMPUS beneficiaries on the premises of a military treatment 
facility under the Military-Civilian Health Services Partnership 
Program. These internal agreements may be established when a military 
treatment facility is unable to provide sufficient health care services 
for CHAMPUS beneficiaries due to shortages of personnel and other 
required resources.
    Internal Resource Sharing Agreement. A type of Internal Partnership 
Agreement, established in the context of the TRICARE program by 
agreement of a military medical treatment facility commander and 
authorized TRICARE contractor. Internal Resource Sharing Agreements may 
incorporate TRICARE features in lieu of standard CHAMPUS features that 
would apply to standard Internal Partnership Agreements.
    Item, Service, or Supply. Includes (1) any item, device, medical 
supply, or service claimed to have been provided to a beneficiary 
(patient) and listed in an itemized claim for CHAMPUS payment or a 
request for payment, or (2) in the case of a claim based on costs, any 
entry or omission in a cost report, books of account, or other documents 
supporting the claim.
    Laboratory and pathological services. Laboratory and pathological 
examinations (including machine diagnostic tests that produce hard-copy 
results) when necessary to, and rendered in connection with medical, 
obstetrical, or surgical diagnosis or treatment of an illness or injury, 
or in connection with well-baby care.
    Legitimized child. A formerly illegitimate child who is considered 
legitimate by reason of qualifying actions recognized in law.
    Licensed practical nurse (L.P.N.). A person who is prepared 
specially in the scientific basis of nursing; who is a graduate of a 
school of practical nursing; whose qualifications have been examined by 
a state board of nursing; and who has been authorized legally to 
practice as an L.P.N. under the supervision of a physician.
    Licensed vocational nurse (L.V.N.) A person who specifically is 
prepared in the scientific basis or nursing; who is a graduate of a 
school of vocational nursing; whose qualifications have been examined by 
a state board of nursing; and who has been authorized legally to

[[Page 74]]

practice as a L.V.N. under the supervision of a physician.
    Long-term hospital care. Any inpatient hospital stay that exceeds 30 
days.
    Low-risk pregnancy. A pregnancy is low-risk when the basis for the 
ongoing clinical expectation of a normal uncomplicated birth, as defined 
by reasonable and generally accepted criteria of maternal and fetal 
health, is documented throughout a generally accepted course of prenatal 
care.
    Major life activity. Breathing, cognition, hearing, seeing, and age 
appropriate ability essential to bathing, dressing, eating, grooming, 
speaking, stair use, toilet use, transferring, and walking.
    Marriage and family therapist, certified. An extramedical individual 
provider who meets the requirements outlined in Sec. 199.6.
    Maternity care. Care and treatment related to conception, delivery, 
and abortion, including prenatal and postnatal care (generally through 
the 6th post-delivery week), and also including treatment of the 
complications of pregnancy.
    Medicaid. Those medical benefits authorized under Title XIX of the 
Social Security Act provided to welfare recipients and the medically 
indigent through programs administered by the various states.
    Medical. The generally used term which pertains to the diagnosis and 
treatment of illness, injury, pregnancy, and mental disorders by trained 
and licensed or certified health professionals. For purposes of CHAMPUS, 
the term ``medical'' should be understood to include ``medical, 
psychological, surgical, and obstetrical,'' unless it is specifically 
stated that a more restrictive meaning is intended.
    Medical emergency. The sudden and unexpected onset of a medical 
condition or the acute exacerbation of a chronic condition that is 
threatening to life, limb, or sight, and requires immediate medical 
treatment or which manifests painful symptomatology requiring immediate 
palliative efforts to alleviate suffering. Medical emergencies include 
heart attacks, cardiovascular accidents, poisoning, convulsions, kidney 
stones, and such other acute medical conditions as may be determined to 
be medical emergencies by the Director, OCHAMPUS, or a designee. In the 
case of a pregnancy, a medical emergency must involve a sudden and 
unexpected medical complication that puts the mother, the baby, or both, 
at risk. Pain would not, however, qualify a maternity case as an 
emergency, nor would incipient birth after the 34th week of gestation, 
unless an otherwise qualifying medical condition is present. Examples of 
medical emergencies related to pregnancy or delivery are hemorrhage, 
ruptured membrane with prolapsed cord, placenta previa, abruptio 
placenta, presence of shock or unconsciousness, suspected heart attack 
or stroke, or trauma (such as injuries received in an automobile 
accident).
    Medically or psychologically necessary preauthorization. A pre (or 
prior) authorization for payment for medical/surgical or psychological 
services based upon criteria that are generally accepted by qualified 
professionals to be reasonable for diagnosis and treatment of an 
illness, injury, pregnancy, and mental disorder.
    Medical supplies and dressings (consumables). Necessary medical or 
surgical supplies (exclusive of durable medical equipment) that do not 
withstand prolonged, repeated use and that are needed for the proper 
medical management of a condition for which benefits are otherwise 
authorized under CHAMPUS, on either an inpatient or outpatient basis. 
Examples include disposable syringes for a diabetic, colostomy sets, 
irrigation sets, and ace bandages.
    Medically or psychologically necessary. The frequency, extent, and 
types of medical services or supplies which represent appropriate 
medical care and that are generally accepted by qualified professionals 
to be reasonable and adequate for the diagnosis and treatment of 
illness, injury, pregnancy, and mental disorders or that are reasonable 
and adequate for well-baby care.
    Medicare. These medical benefits authorized under Title XVIII of the 
Social Security Act provided to persons 65 or older, certain disabled 
persons, or persons with chronic renal disease,

[[Page 75]]

through a national program administered by the DHHS, Health Care 
Financing Administration, Medicare Bureau.
    Member. A person on active duty in a Uniformed Service under a call 
or order that does not specify a period of 30 days or less. (For CHAMPUS 
cost-sharing purposes only, a former member who received a dishonorable 
or bad-conduct discharge or was dismissed from a Uniformed Service as a 
result of a court-martial conviction for an offense involving physical 
or emotional abuse or was administratively discharged as a result of 
such an offense is considered a member).
    Mental disorder. For purposes of the payment of CHAMPUS benefits, a 
mental disorder is a nervous or mental condition that involves a 
clinically significant behavioral or psychological syndrome or pattern 
that is associated with a painful symptom, such as distress, and that 
impairs a patient's ability to function in one or more major life 
activities. Additionally, the mental disorder must be one of those 
conditions listed in the DSM-III.
    Mental health counselor. An extramedical individual provider who 
meets the requirements outlined in Sec. 199.6.
    Mental health therapeutic absence. A therapeutically planned absence 
from the inpatient setting. The patient is not discharged from the 
facility and may be away for periods of several hours to several days. 
The purpose of the therapeutic absence is to give the patient an 
opportunity to test his or her ability to function outside the inpatient 
setting before the actual discharge.
    Missing in action (MIA). A battle casualty whose whereabouts and 
status are unknown, provided the absence appears to be involuntary and 
the service member is not known to be in a status of unauthorized 
absence.
    Note: Claims for eligible CHAMPUS beneficiaries whose sponsor is 
classified as MIA are processed as dependents of an active duty service 
member.
    Morbid obesity. The body weight is 100 pounds over ideal weight for 
height and bone structure, according to the most current Metropolitan 
Life Table, and such weight is in association with severe medical 
conditions known to have higher mortality rates in association with 
morbid obesity; or, the body weight is 200 percent or more of the ideal 
weight for height and bone structure according to the most current 
Metropolitan Life Table. The associated medical conditions are diabetes 
mellitus, hypertension, cholecystitis, narcolepsy, pickwickian syndrome 
(and other severe respiratory diseases), hypothalmic disorders, and 
severe arthritis of the weight-bearing joints.
    Most-favored rate. The lowest usual charge to any individual or 
third-party payer in effect on the date of the admission of a CHAMPUS 
beneficiary.
    Natural childbirth. Childbirth without the use of chemical induction 
or augmentation of labor or surgical procedures other than episiotomy or 
perineal repair.
    Naturopath. A person who practices naturopathy, that is, a drugless 
system of therapy making use of physical forces such as air, light, 
water, heat, and massage.
    Note: Services of a naturopath are not covered by CHAMPUS.
    NAVCARE clinics. Contractor owned, staffed, and operated primary 
clinics exclusively serving uniformed services beneficiaries pursuant to 
contracts awarded by a Military Department.
    No-fault insurance. No-fault insurance means an insurance contract 
providing compensation for health and medical expenses relating to 
personal injury arising from the operation of a motor vehicle in which 
the compensation is not premised on whom may have been responsible for 
causing such injury. No-fault insurance includes personal injury 
protection and medical payments benefits in cases involving personal 
injuries resulting from operation of a motor vehicle.
    Nonavailability statement. A certification by a commander (or a 
designee) of a Uniformed Services medical treatment facility, recorded 
on DEERS, generally for the reason that the needed medical care being 
requested by a non-TRICARE Prime enrolled beneficiary cannot be provided 
at the facility concerned because the necessary resources are not 
available in the time frame needed.

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    Nonparticipating provider. A hospital or other authorized 
institutional provider, a physician or other authorized individual 
professional provider, or other authorized provider that furnished 
medical services or supplies to a CHAMPUS beneficiary, but who did not 
agree on the CHAMPUS claim form to participate or to accept the CHAMPUS-
determined allowable cost or charge as the total charge for the 
services. A nonparticipating provider looks to the beneficiary or 
sponsor for payment of his or her charge, not CHAMPUS. In such cases, 
CHAMPUS pays the beneficiary or sponsor, not the provider.
    North Atlantic Treaty Organization (NATO) member. A military member 
of an armed force of a foreign NATO nation who is on active duty and 
who, in connection with official duties, is stationed in or passing 
through the United States. The foreign NATO nations are Belgium, Canada, 
Denmark, France, Federal Republic of Germany, Greece, Iceland, Italy, 
Luxembourg, the Netherlands, Norway, Portugal, Spain, Turkey, and the 
United Kingdom.
    Not-for-profit entity. An organization or institution owned and 
operated by one or more nonprofit corporations or associations formed 
pursuant to applicable state laws, no part of the net earnings of which 
inures, or may lawfully inure, to the benefit of any private shareholder 
or individual.
    Occupational therapist. A person who is trained specially in the 
skills and techniques of occupational therapy (that is, the use of 
purposeful activity with individuals who are limited by physical injury 
of illness, psychosocial dysfunction, developmental or learning 
disabilities, poverty and cultural differences, or the aging process in 
order to maximize independence, prevent disability, and maintain health) 
and who is licensed to administer occupational therapy treatments 
prescribed by a physician.
    Official formularies. A book of official standards for certain 
pharmaceuticals and preparations that are not included in the U.S. 
Pharmacopeia.
    Optometrist (Doctor of Optometry). A person trained and licensed to 
examine and test the eyes and to treat visual defects by prescribing and 
adapting corrective lenses and other optical aids, and by establishing 
programs of exercises.
    Oral surgeon (D.D.S. or D.M.D.). A person who has received a degree 
in dentistry and who limits his or her practice to oral surgery, that 
is, that branch of the healing arts that deals with the diagnosis and 
the surgical correction and adjunctive treatment of diseases, injuries, 
and defects of the mouth, the jaws, and associated structures.
    Orthopedic shoes. Shoes prescribed by an orthopedic surgeon to 
effect changes in foot or feet position and alignment and which are not 
an integral part of a brace.
    Other allied health professionals. Individual professional providers 
other than physicians, dentists, or extramedical individual providers, 
as specified in Sec. 199.6 of this part.
    Other special institutional providers. Certain specialized medical 
treatment facilities, either inpatient or outpatient, other than those 
specifically defined, that provide courses of treatment prescribed by a 
doctor of medicine or osteopathy; when the patient is under the 
supervision of a doctor of medicine or osteopathy during the entire 
course of the inpatient admission or the outpatient treatment; when the 
type and level of care and services rendered by the institution are 
otherwise authorized in this Regulation; when the facility meets all 
licensing or other certification requirements that are extant in the 
jurisdiction in which the facility is located geographically; which is 
accredited by the Joint Commission on Accreditation if an appropriate 
accreditation program for the given type of facility is available; and 
which is not a nursing home, intermediate facility, halfway house, home 
for the aged, or other institution of similar purpose.
    Outpatient. A patient who has not been admitted to a hospital or 
other authorized institution as an inpatient.
    Ownership or control interest. For purposes of Sec. 199.9(f)(1), a 
``person with an ownership or control interest'' is anyone who
    (1) Has directly or indirectly a 5 percent or more ownership 
interest in the entity; or

[[Page 77]]

    (2) Is the owner of a whole or part interest in any mortgage, deed 
of trust, note, or other obligation secured (in whole or in part) by the 
entity or any of the property or assets thereof, which whole or part 
interest is equal to or exceeds 5 percent of the total property and 
assets of the entity; or
    (3) Is an officer or director of the entity if the entity is 
organized as a corporation; or
    (4) Is a partner in the entity if the entity is organized as a 
partnership.
    Partial hospitalization. A treatment setting capable of providing an 
interdisciplinary program of medical therapeutic services at least 3 
hours per day, 5 days per week, which may embrace day, evening, night 
and weekend treatment programs which employ an integrated, comprehensive 
and complementary schedule of recognized treatment approaches. Partial 
hospitalization is a time-limited, ambulatory, active treatment program 
that offers therapeutically intensive, coordinated, and structured 
clinical services within a stable therapeutic environment. Partial 
hospitalization is an appropriate setting for crisis stabilization, 
treatment of partially stabilized mental health disorders, and a 
transition from an inpatient program when medically necessary. Such 
programs must enter into a participation agreement with CHAMPUS, and be 
accredited and in substantial compliance with the standards of the 
Mental Health Manual of the Joint Commission on Accreditation of 
Healthcare Organizations (JCAHO) (formerly known as the Consolidated 
Standards).
    Participating provider. A CHAMPUS-authorized provider that is 
required, or has agreed by entering into a CHAMPUS participation 
agreement or by act of indicating ``accept assignment'' on the claim 
form, to accept the CHAMPUS-allowable amount as the maximum total charge 
for a service or item rendered to a CHAMPUS beneficiary, whether the 
amount is paid for fully by CHAMPUS or requires cost-sharing by the 
CHAMPUS beneficiary.
    Part-time home health aide and skilled nursing services. Part-time 
means:
    (1) Up to and including 28 hours per week of skilled nursing and 
home health aide services combined for less than eight hours per day; or
    (2) Up to 35 hours per week of skilled nursing and home health aide 
services combined for less than eight hours per day subject to review by 
managed care support contractors on a case-by-case basis, based upon 
documentation justifying the need for and reasonableness of such 
additional care.
    Party to a hearing. An appealing party or parties and CHAMPUS.
    Party to the initial determination. Includes CHAMPUS and also refers 
to a CHAMPUS beneficiary and a participating provider of services whose 
interests have been adjudicated by the initial determination. In 
addition, a provider who has been denied approval as an authorized 
CHAMPUS provider is a party to that initial determination, as is a 
provider who is disqualified or excluded as an authorized provider under 
CHAMPUS, unless the provider is excluded based on a determination of 
abuse or fraudulent practices or procedures under another federal or 
federally funded program. See Sec. 199.10 for additional information 
concerning parties not entitled to administrative review under the 
CHAMPUS appeals and hearing procedures.
    Pastoral counselor. An extramedical individual provider who meets 
the requirements outlined in Sec. 199.6.
    Pharmaceutical Agent. Drugs, biological products, and medical 
devices under the regulatory authority of the Food and Drug 
Administration.
    Pharmacist. A person who is trained specially in the scientific 
basis of pharmacology and who is licensed to prepare and sell or 
dispense drugs and compounds and to make up prescriptions ordered by a 
physician.
    Physical medicine services or physiatry services. The treatment of 
disease or injury by physical means such as massage, hydrotherapy, or 
heat.
    Physical therapist. A person who is trained specially in the skills 
and techniques of physical therapy (that is, the treatment of disease by 
physical agents and methods such as heat, massage, manipulation, 
therapeutic exercise, hydrotherapy, and various forms of energy such as 
electrotherapy and ultrasound), who has been authorized

[[Page 78]]

legally (that is, registered) to administer treatments prescribed by a 
physician and who is entitled legally to use the designation 
``Registered Physical Therapist.'' A physical therapist also may be 
called a physiotherapist.
    Physician. A person with a degree of Doctor of Medicine (M.D.) or 
Doctor of Osteopathy (D.O.) who is licensed to practice medicine by an 
appropriate authority.
    Physician in training. Interns, residents, and fellows participating 
in approved postgraduate training programs and physicians who are not in 
approved programs but who are authorized to practice only in a hospital 
or other institutional provider setting, e.g., individuals with 
temporary or restricted licenses, or unlicensed graduates of foreign 
medical schools.
    Podiatrist (Doctor of Podiatry or Surgical Chiropody). A person who 
has received a degree in podiatry (formerly called chiropody), that is, 
that specialized field of the healing arts that deals with the study and 
care of the foot, including its anatomy, pathology, and medical and 
surgical treatment.
    Preauthorization. A decision issued in writing, or electronically by 
the Director, TRICARE Management Activity, or a designee, that TRICARE 
benefits are payable for certain services that a beneficiary has not yet 
received. The term prior authorization is commonly substituted for 
preauthorization and has the same meaning.
    Prescription drugs and medicines. Drugs and medicines which at the 
time of use were approved for commercial marketing by the U.S. Food and 
Drug Administration, and which, by law of the United States, require a 
physician's or dentist's prescription, except that it includes insulin 
for known diabetics whether or not a prescription is required. Drugs 
grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be 
covered under CHAMPUS as if FDA approved. Prescription drugs and 
medicines may also be referred to as ``pharmaceutical agents''.
    Note: The fact that the U.S. Food and Drug Administration has 
approved a drug for testing on humans would not qualify it within this 
definition.
    Preventive care. Diagnostic and other medical procedures not related 
directly to a specific illness, injury, or definitive set of symptoms, 
or obstetrical care, but rather performed as periodic health screening, 
health assessment, or health maintenance.
    Primary caregiver. An individual who renders to a beneficiary 
services to support the activities of daily living (as defined in Sec. 
199.2) and specific services essential to the safe management of the 
beneficiary's condition.
    Primary payer. The plan or program whose medical benefits are 
payable first in a double coverage situation.
    PRIMUS clinics. Contractor owned, staffed, and operated primary care 
clinics exclusively serving uniformed services beneficiaries pursuant to 
contracts awarded by a Military Department.
    Private room. A room with one bed that is designated as a private 
room by the hospital or other authorized institutional provider.
    Profound hearing loss (adults). An ``adult'' (a spouse as defined in 
section 32 CFR 199.3(b) of this part of a member of the Uniformed 
Services on active duty for more than 30 days) with a hearing threshold 
of:
    (1) 40 dB HL or greater in one or both ears when tested at 500, 
1,000, 1,500, 2,000, 3,000, or 4,000Hz; or
    (2) 26 dB HL or greater in one or both ears at any three or more of 
those frequencies; or
    (3) A speech recognition score less than 94 percent.
    Profound hearing loss (children). A ``child'' (an unmarried child of 
an active duty member who otherwise meets the criteria (including age 
requirements) in 32 CFR 199.3 of this part) with a 26dB HL or greater 
hearing threshold level in one or both ears when tested in the frequency 
range at 500, 1,000, 2,000, 3,000 or 4,000 Hz.
    Progress notes. Progress notes are an essential component of the 
medical record wherein health care personnel provide written evidence of 
ordered and supervised diagnostic tests, treatments, medical procedures, 
therapeutic behavior and outcomes. In the case of mental health care, 
progress notes must include: the date of the therapy session; length of 
the therapy session; a notation of the patient's signs and symptoms; the 
issues, pathology and

[[Page 79]]

specific behaviors addressed in the therapy session; a statement 
summarizing the therapeutic interventions attempted during the therapy 
session; descriptions of the response to treatment, the outcome of the 
treatment, and the response to significant others; and a statement 
summarizing the patient's degree of progress toward the treatment goals. 
Progress notes do not need to repeat all that was said during a therapy 
session but must document a patient contact and be sufficiently detailed 
to allow for both peer review and audits to substantiate the quality and 
quantity of care rendered.
    Prosthetic device (prosthesis). An artificial substitute for a 
missing body part.
    Prosthetic or Prosthetic Device (prosthesis). A prosthetic or 
prosthetic device (prosthesis) determined by the Secretary of Defense to 
be necessary because of significant conditions resulting from trauma, 
congenital anomalies, or diseases.
    Prosthetic supplies. Supplies that are necessary for the effective 
use of a prosthetic or prosthetic device.
    Provider. A hospital or other institutional provider, a physician, 
or other individual professional provider, or other provider of services 
or supplies as specified in Sec. 199.6 of this part.
    Provider exclusion and suspension. The terms ``exclusion'' and 
``suspension'', when referring to a provider under CHAMPUS, both mean 
the denial of status as an authorized provider, resulting in items, 
services, or supplies furnished by the provider not being reimbursed, 
directly or indirectly, under CHAMPUS. The terms may be used 
interchangeably to refer to a provider who has been denied status as an 
authorized CHAMPUS provider based on (1) a criminal conviction or civil 
judgment involving fraud, (2) an administrative finding of fraud or 
abuse under CHAMPUS, (3) an administrative finding that the provider has 
been excluded or suspended by another agency of the Federal Government, 
a state, or a local licensing authority, (4) an administrative finding 
that the provider has knowingly participated in a conflict of interest 
situation, or (5) an administrative finding that it is in the best 
interests of the CHAMPUS or CHAMPUS beneficiaries to exclude or suspend 
the provider.
    Provider termination. When a provider's status as an authorized 
CHAMPUS provider is ended, other than through exclusion or suspension, 
based on a finding that the provider does not meet the qualifications, 
as set forth in Sec. 199.6 of this part, to be an authorized CHAMPUS 
provider.
    Psychiatric emergency. A psychiatric inpatient admission is an 
emergency when, based on a psychiatric evaluation performed by a 
physician (or other qualified mental health care professional with 
hospital admission authority), the patient is at immediate risk of 
serious harm to self or others as a result of a mental disorder and 
requires immediate continuous skilled observation at the acute level of 
care.
    Public facility. A public authority or entity legally constituted 
within a State (as defined in this section) to administer, control or 
perform a service function for public health, education or human 
services programs in a city, county, or township, special district, or 
other political subdivision, or such combination of political 
subdivisions or special districts or counties as are recognized as an 
administrative agency for a State's public health, education or human 
services programs, or any other public institution or agency having 
administrative control and direction of a publicly funded health, 
education or human services program.
    Public facility adequacy. An available public facility shall be 
considered adequate when the Director, OCHAMPUS, or designee, determines 
that the quality, quantity, and frequency of an available service or 
item otherwise allowable as a CHAMPUS benefit is sufficient to meet the 
beneficiary's specific disability related need in a timely manner.
    Public facility availability. A public facility shall be considered 
available when the public facility usually and customarily provides the 
requested service or item to individuals with the same or similar 
disability related need as the otherwise equally qualified CHAMPUS 
beneficiary.
    Qualified accreditation organization. A not-for-profit corporation 
or a foundation that:

[[Page 80]]

    (1) Develops process standards and outcome standards for health care 
delivery programs, or knowledge standards and skill standards for health 
care professional certification testing, using experts both from within 
and outside of the health care program area or individual specialty to 
which the standards are to be applied;
    (2) Creates measurable criteria that demonstrate compliance with 
each standard;
    (3) Publishes the organization's standards, criteria and evaluation 
processes so that they are available to the general public;
    (4) Performs on-site evaluations of health care delivery programs, 
or provides testing of individuals, to measure the extent of compliance 
with each standard;
    (5) Provides on-site evaluation or individual testing on a national 
or international basis;
    (6) Provides to evaluated programs and tested individuals time-
limited written certification of compliance with the organization's 
standards;
    (7) Excludes certification of any program operated by an 
organization which has an economic interest, as defined in this section, 
in the accreditation organization or in which the accreditation 
organization has an economic interest;
    (8) Publishes promptly the certification outcomes of each program 
evaluation or individual test so that it is available to the general 
public; and
    (9) Has been found by the Director, OCHAMPUS, or designee, to apply 
standards, criteria, and certification processes which reinforce CHAMPUS 
provider authorization requirements and promote efficient delivery of 
CHAMPUS benefits.
    Radiation therapy services. The treatment of diseases by x-ray, 
radium, or radioactive isotopes when ordered by the attending physician.
    Rare Diseases. CHAMPUS defines a rare disease as one which affects 
fewer than one in 200,000 Americans.
    Referral. The act or an instance of referring a CHAMPUS beneficiary 
to another authorized provider to obtain necessary medical treatment. 
Under CHAMPUS, only a physician may make referrals.
    Registered nurse. A person who is prepared specially in the 
scientific basis of nursing, who is a graduate of a school of nursing, 
and who is registered for practice after examination by a state board of 
nurse examiners or similar regulatory authority, who holds a current, 
valid license, and who is entitled legally to use the designation R.N.
    Rehabilitation. The reduction of an acquired loss of ability to 
perform an activity in the manner, or within the range considered 
normal, for a human being.
    Rehabilitative therapy. Any rehabilitative therapy that is necessary 
to improve, restore, or maintain function, or to minimize or prevent 
deterioration of function, of a patient and prescribed by a physician.
    Reliable evidence. (1) As used in Sec. 199.4(g)(15), the term 
reliable evidence means only:
    (i) Well controlled studies of clinically meaningful endpoints, 
published in refereed medical literature.
    (ii) Published formal technology assessments.
    (iii) The published reports of national professional medical 
associations.
    (iv) Published national medical policy organization positions; and
    (v) The published reports of national expert opinion organizations.
    (2) The hierarchy of reliable evidence of proven medical 
effectiveness, established by (1) through (5) of this paragraph, is the 
order of the relative weight to be given to any particular source. With 
respect to clinical studies, only those reports and articles containing 
scientifically valid data and published in the refereed medical and 
scientific literature shall be considered as meeting the requirements of 
reliable evidence. Specifically not included in the meaning of reliable 
evidence are reports, articles, or statements by providers or groups of 
providers containing only abstracts, anecdotal evidence or personal 
professional opinions. Also not included in the meaning of reliable 
evidence is the fact that a provider or a number of providers have 
elected to adopt a drug, device, or medical treatment or procedure as 
their personal treatment or procedure of choice or standard of practice.

[[Page 81]]

    Representative. Any person who has been appointed by a party to the 
initial determination as counsel or advisor and who is otherwise 
eligible to serve as the counsel or advisor of the party to the initial 
determination, particularly in connection with a hearing.
    Reservist. A person who is under an active duty call or order to one 
of the Uniformed Services for a period of 30 days or less or is on 
inactive training.
    Resident (medical). A graduate physician or dentist who has an M.D. 
or D.O. degree, or D.D.S. or D.M.D. degree, respectively, is licensed to 
practice, and who choose to remain on the house staff of a hospital to 
get further training that will qualify him or her for a medical or 
dental specialty.
    Residential treatment center (RTC). A facility (or distinct part of 
a facility) which meets the criteria in Sec. 199.6(b)(4)(v).
    Respite care. Respite care is short-term care for a patient in order 
to provide rest and change for those who have been caring for the 
patient at home, usually the patient's family.
    Retiree. A member or former member of a Uniformed Service who is 
entitled to retired, retainer, or equivalent pay based on duty in a 
Uniformed Service.
    Routine eye examinations. The services rendered in order to 
determine the refractive state of the eyes.
    Sanction. For purpose of Sec. 199.9, ``sanction'' means a provider 
exclusion, suspension, or termination.
    Secondary payer. The plan or program whose medical benefits are 
payable in double coverage situations only after the primary payer has 
adjudicated the claim.
    Semiprivate room. A room containing at least two beds. If a room is 
designated publicly as a semiprivate accommodation by the hospital or 
other authorized institutional provider and contains multiple beds, it 
qualifies as a semiprivate room for the purposes of CHAMPUS.
    Serious physical disability. Any physiological disorder or condition 
or anatomical loss affecting one or more body systems which has lasted, 
or with reasonable certainty is expected to last, for a minimum period 
of 12 contiguous months, and which precludes the person with the 
disorder, condition or anatomical loss from unaided performance of at 
least one Major Life Activity as defined in this section.
    Skilled nursing facility. An institution (or a distinct part of an 
institution) that meets the criteria as set forth in Sec. 
199.6(b)(4)(vi).
    Skilled nursing services. Skilled nursing services includes 
application of professional nursing services and skills by an RN, LPN, 
or LVN, that are required to be performed under the general supervision/
direction of a TRICARE-authorized physician to ensure the safety of the 
patient and achieve the medically desired result in accordance with 
accepted standards of practice.
    Spectacles, eyeglasses, and lenses. Lenses, including contact 
lenses, that help to correct faulty vision.
    Speech generating device (SGD). See Augmentative Communication 
Device.
    Sponsor. A member or former member of a Uniformed Service upon whose 
status his or her dependents' eligibility for CHAMPUS is based. A 
sponsor also includes a person who, while a member of the Uniformed 
Services and after becoming eligible to be retired on the basis of years 
of service, has his or her eligibility to receive retired pay terminated 
as a result of misconduct involving abuse of a spouse or dependent 
child. It also includes NATO members who are stationed in or passing 
through the United States on official business when authorized. It also 
includes individuals eligible for CHAMPUS under the Transitional 
Assistance Management Program.
    Spouse. A lawful husband or wife, who meets the criteria in Sec. 
199.3 of this part, regardless of whether or not dependent upon the 
member or former member for his or her own support.
    State. For purposes of this part, any of the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth 
of the Northern Mariana Islands, and each territory and possession of 
the United States.
    State victims of crime compensation programs. Benefits available to 
victims of crime under the Violent Crime Control and Law Enforcement 
Act.
    Student status. A dependent of a member or former member of a 
Uniformed

[[Page 82]]

Service who has not passed his or her 23rd birthday, and is enrolled in 
a full-time course of study in an institution of higher learning.
    Supplemental insurance plan. A health insurance policy or other 
health benefit plan offered by a private entity to a CHAMPUS 
beneficiary, that primarily is designed, advertised, marketed, or 
otherwise held out as providing payment for expenses incurred for 
services and items that are not reimbursed under CHAMPUS due to program 
limitations, or beneficiary liabilities imposed by law. CHAMPUS 
recognizes two types of supplemental plans, general indemnity plans, and 
those offered through a direct service health maintenance organization 
(HMO).
    (1) An indemnity supplemental insurance plan must meet all of the 
following criteria:
    (i) It provides insurance coverage, regulated by state insurance 
agencies, which is available only to beneficiaries of CHAMPUS.
    (ii) It is premium based and all premiums relate only to the CHAMPUS 
supplemental coverage.
    (iii) Its benefits for all covered CHAMPUS beneficiaries are 
predominantly limited to non-covered services, to the deductible and 
cost-shared portions of the pre-determined allowable charges, and/or to 
amounts exceeding the allowable charges for covered services.
    (iv) It provides insurance reimbursement by making payment directly 
to the CHAMPUS beneficiary or to the participating provider.
    (v) It does not operate in a manner which results in lower 
deductibles or cost-shares than those imposed by law, or that waives the 
legally imposed deductibles or cost-shares.
    (2) A supplemental insurance plan offered by a Health Maintenance 
Organization (HMO) must meet all of the following criteria:
    (i) The HMO must be authorized and must operate under relevant 
provisions of state law.
    (ii) The HMO supplemental plan must be premium based and all 
premiums must relate only to CHAMPUS supplemental coverage.
    (iii) The HMO's benefits, above those which are directly reimbursed 
by CHAMPUS, must be limited predominantly to services not covered by 
CHAMPUS and CHAMPUS deductible and cost-share amounts.
    (iv) The HMO must provide services directly to CHAMPUS beneficiaries 
through its affiliated providers who, in turn, are reimbursed by 
CHAMPUS.
    (v) The HMO's premium structure must be designed so that no overall 
reduction in the amount of the beneficiary deductibles or cost-shares 
will result.
    Suppliers of portable X-ray services. A supplier that meets the 
conditions of coverage of the Medicare program, set forth in the 
Medicare regulations (42 CFR 405.1411 through 405.1416 (as amended)) or 
the Medicaid program in the state in which the covered service is 
provided.
    Surgery. Medically appropriate operative procedures, including 
related preoperative and postoperative care; reduction of fractures and 
dislocations; injections and needling procedures of the joints; laser 
surgery of the eye; and those certain procedures listed in Sec. 
199.4(c)(2)(i) of this part.
    Surgical assistant. A physician (or dentist or podiatrist) who 
assists the operating surgeon in the performance of a covered surgical 
service when such assistance is certified as necessary by the attending 
surgeon, when the type of surgical procedure being performed is of such 
complexity and seriousness as to require a surgical assistant, and when 
interns, residents, or other house staff are not available to provide 
the surgical assistance services in the specialty area required.
    Suspension of claims processing. The temporary suspension of 
processing (to protect the government's interests) of claims for care 
furnished by a specific provider (whether the claims are submitted by 
the provider or beneficiary) or claims submitted by or on behalf of a 
specific CHAMPUS beneficiary pending action by the Director, OCHAMPUS, 
or a designee, in a case of suspected fraud or abuse. The action may 
include the administrative remedies provided for in Sec. 199.9 or any 
other Department of Defense issuance (e.g. DoD issuances implementing 
the Program Fraud Civil Remedies Act), case development or investigation 
by

[[Page 83]]

OCHAMPUS, or referral to the Department of Defense-Inspector General or 
the Department of Justice for action within their cognizant 
jurisdictions.
    Teaching physician. A teaching physician is any physician whose 
duties include providing medical training to physicians in training 
within a hospital or other institutional provider setting.
    Third-party payer. Third-payer means an entity that provides an 
insurance, medical service, or health plan by contract or agreement, 
including an automobile liability insurance or no fault insurance 
carrier and a worker's compensation program or plan, and any other plan 
or program (e.g., homeowners insurance) that is designed to provide 
compensation or coverage for expenses incurred by a beneficiary for 
medical services or supplies. For purposes of the definition of ``third-
party payer,'' an insurance, medical service, or health plan includes a 
preferred provider organization, an insurance plan described as Medicare 
supplemental insurance, and a personal injury protection plan or medical 
payments benefit plan for personal injuries resulting from the operation 
of a motor vehicle.

    Note: TRICARE is secondary payer to all third-party payers. Under 
limited circumstances described in Sec. 199.8(c)(2) of this part, 
TRICARE payment may be authorized to be paid in advance of adjudication 
of the claim by certain third-party payers. TRICARE advance payments 
will not be made when a third-party provider is determined to be a 
primary medical insurer under Sec. 199.8(c)(3) of this part.''

    Timely filing. The filing of CHAMPUS claims within the prescribed 
time limits as set forth in Sec. 199.7 of this part.
    Transitional Assistance Management Program (TAMP). The program 
established under 10 U.S.C. Sec. 1145(a) and Sec. 199.3(e) of this 
part.
    Treatment plan. A detailed description of the medical care being 
rendered or expected to be rendered a CHAMPUS beneficiary seeking 
approval for inpatient benefits for which preauthorization is required 
as set forth in Sec. 199.4(b) of this part. A treatment plan must 
include, at a minimum, a diagnosis (either ICD-9-CM or DSM-III); 
detailed reports of prior treatment, medical history, family history, 
social history, and physical examination; diagnostic test results; 
consultant's reports (if any); proposed treatment by type (such as 
surgical, medical, and psychiatric); a description of who is or will be 
providing treatment (by discipline or specialty); anticipated frequency, 
medications, and specific goals of treatment; type of inpatient facility 
required and why (including length of time the related inpatient stay 
will be required); and prognosis. If the treatment plan involves the 
transfer of a CHAMPUS patient from a hospital or another inpatient 
facility, medical records related to that inpatient stay also are 
required as a part of the treatment plan documentation.
    TRICARE extra plan. The health care option, provided as part of the 
TRICARE program under Sec. 199.17, under which beneficiaries may choose 
to receive care in facilities of the uniformed services, or from special 
civilian network providers (with reduced cost sharing), or from any 
other CHAMPUS-authorized provider (with standard cost sharing).
    TRICARE prime plan. The health care option, provided as part of the 
TRICARE program under Sec. 199.17, under which beneficiaries enroll to 
receive all health care from facilities of the uniformed services and 
civilian network providers (with civilian care subject to substantially 
reduced cost sharing.
    TRICARE program. The program establish under Sec. 199.17.
    TRICARE Reserve Select. The program established under 10 U.S.C. 
Sec. 1076d and Sec. 199.24 of this part.
    TRICARE standard plan. The health care option, provided as part of 
the TRICARE program under Sec. 199.17, under which beneficiaries are 
eligible for care in facilities of the uniformed services and CHAMPUS 
under standard rules and procedures.
    Uniform HMO benefit. The health care benefit established by Sec. 
199.18.
    Uniformed Services. The Army, Navy, Air Force, Marine Corps, Coast 
Guard, Commissioned Corps of the USPHS, and the Commissioned Corps of 
the NOAA.
    Unlabeled or Off-Label Drugs. Food and Drug Administration (FDA) 
approved drugs that are used for indications or treatments not included 
in the

[[Page 84]]

approved labeling. The drug must be medically necessary for the 
treatment of the condition for which it is administered, according to 
accepted standards of medical practice.
    Veteran. A person who served in the active military, naval, or air 
service, and who was discharged or released therefrom under conditions 
other than dishonorable.
    Note: Unless the veteran is eligible for ``retired pay,'' 
``retirement pay,'' or ``retainer pay,'' which refers to payments of a 
continuing nature and are payable at fixed intervals from the government 
for military service neither the veteran nor his or her dependents are 
eligible for benefits under CHAMPUS.
    Waiver of benefit limits. Extension of current benefit limitations 
under the Case Management Program, of medical care, services, and/or 
equipment, not otherwise a benefit under the TRICARE/CHAMPUS program.
    Well-child care. A specific program of periodic health screening, 
developmental assessment, and routine immunization for dependents under 
six years of age.
    Widow or Widower. A person who was a spouse at the time of death of 
a member or former member and who has not remarried.
    Worker's compensation benefits. Medical benefits available under any 
worker's compensation law (including the Federal Employees Compensation 
Act), occupational disease law, employers liability law, or any other 
legislation of similar purpose, or under the maritime doctrine of 
maintenance, wages, and cure.
    X-ray services. An x-ray examination from which an x-ray film or 
other image is produced, ordered by the attending physician when 
necessary and rendered in connection with a medical or surgical 
diagnosis or treatment of an illness or injury, or in connection with 
maternity or well-baby care.

[51 FR 24008, July 1, 1986, as amended at 64 FR 46134, Aug. 24, 1999]

    Editorial Note: For Federal Register citations affecting Sec. 
199.2, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Editorial Note: At 66 FR 45172, Aug. 28, 2001, Sec. 199.2, was 
amended in part by revising the definition of ``Director, OCHAMPUS''. 
However, because of inaccurate amendatory language, this amendment could 
not be incorporated.



Sec. 199.3  Eligibility.

    (a) General. This section sets forth those persons who, by the 
provisions of 10 U.S.C. chapter 55, and the NATO Status of Forces 
Agreement, are eligible for CHAMPUS benefits. A determination that a 
person is eligible does not automatically entitle such a person to 
CHAMPUS payments. Before any CHAMPUS benefits may be extended, 
additional requirements, as set forth in other sections of this part, 
must be met. Additionally, the use of CHAMPUS may be denied if a 
Uniformed Service medical treatment facility capable of providing the 
needed care is available. CHAMPUS relies primarily on the Defense 
Enrollment Eligibility Reporting System (DEERS) for eligibility 
verification.
    (b) CHAMPUS eligibles--(1) Retiree. A member or former member of a 
Uniformed Service who is entitled to retired, retainer, or equivalent 
pay based on duty in a Uniformed Service.
    (2) Dependent. Individuals whose relationship to the sponsor leads 
to entitlement to benefits. CHAMPUS eligible dependents include the 
following:
    (i) Spouse. A lawful husband or wife of a member or former member. 
The spouse of a deceased member or retiree must not be remarried. A 
former spouse also may qualify for benefits as a dependent spouse. A 
former spouse is a spouse who was married to a military member, or 
former member, but whose marriage has been terminated by a final decree 
of divorce, dissolution or annulment. To be eligible for CHAMPUS 
benefits, a former spouse must meet the criteria described in paragraphs 
(b)(2)(i)(A) through (b)(2)(i)(E) of this section and must qualify under 
the group defined in paragraph (b)(2)(i)(F)(1) or (b)(2)(i)(F)(2) of 
this section.
    (A) Must be unremarried; and
    (B) Must not be covered by an employer-sponsored health plan; and
    (C) Must have been married to a member or former member who 
performed at least 20 years of service which can be credited in 
determining

[[Page 85]]

the member's or former member's eligibility for retired or retainer pay; 
and
    (D) Must not be eligible for Part A of Title XVIII of the Social 
Security Act (Medicare) except as provided in paragraphs (b)(3), 
(f)(3)(vii), (f)(3)(viii), and (f)(3)(ix) of this section; and
    (E) Must not be the dependent of a NATO member; and
    (F) Must meet the requirements of paragraph (b)(2)(i)(F)(1) or 
(b)(2)(i)(F)(2) of this section:
    (1) The former spouse must have been married to the same member or 
former member for at least 20 years, at least 20 of which were 
creditable in determining the member's or former member's eligibility 
for retired or retainer pay. Eligibility continues indefinitely unless 
affected by any of the conditions of paragraphs (b)(2)(i)(A) through 
(b)(2)(i)(E) of this section.
    (i) If the date of the final decree of divorce, dissolution, or 
annulment was before February 1, 1983, the former spouse is eligible for 
CHAMPUS coverage of health care received on or after January 1, 1985.
    (ii) If the date of the final decree of the divorce, dissolution, or 
annulment was on or after February 1, 1983, the former spouse is 
eligible for CHAMPUS coverage of health care which is received on or 
after the date of the divorce, dissolution, or annulment.
    (2) The former spouse must have been married to the same member or 
former member for at least 20 years, and at least 15, but less than 20 
of those married years were creditable in determining the member's or 
former member's eligibility for retired or retainer pay.
    (i) If the date of the final decree of divorce, dissolution, or 
annulment is before April 1, 1985, the former spouse is eligible only 
for care received on or after January 1, 1985, or the date of the 
divorce, dissolution, or annulment, whichever is later. Eligibility 
continues indefinitely unless affected by any of the conditions of 
paragraphs (b)(2)(i)(A) through (b)(2)(i)(E) of this section.
    (ii) If the date of the final decree of divorce, dissolution or 
annulment is on or after April 1, 1985, but before September 29, 1988, 
the former spouse is eligible only for care received from the date of 
the decree of divorce, dissolution, or annulment until December 31, 
1988, or for two years from the date of the divorce, dissolution, or 
annulment, whichever is later.
    (iii) If the date of the final decree of divorce, dissolution, or 
annulment is on or after September 29, 1988, the former spouse is 
eligible only for care received within the 365 days (366 days in the 
case of a leap year) immediately following the date of the divorce, 
dissolution, or annulment.
    (ii) Child. A dependent child is an unmarried child of a member or 
former member who has not reached his or her twenty-first (21st) 
birthday, except an incapacitated adopted child meeting the requirements 
of paragraph (b)(2)(ii)(H)(2) of this section, and who bears one of the 
following relationships to a member or former member of one of the 
Uniformed Services:
    (A) A legitimate child; or
    (B) An adopted child whose adoption has been legally completed on or 
before the child's twenty-first (21st) birthday; or
    (C) A legitimate stepchild; or
    (D) An illegitimate child of a member or former member whose 
paternity/maternity has been determined judicially, and the member or 
former member directed to support the child; or
    (E) An illegitimate child of a member or former member whose 
paternity/maternity has not been determined judicially, who resides with 
or in the home provided by the member or former member, and is or 
continues to be dependent upon the member or former member for over one-
half of his or her support, or who was so dependent on the former member 
at the time of the former member's death; or
    (F) An illegitimate child of a spouse of a member who resides with 
or in a home provided by the member and is, and continues to be 
dependent upon the member for over one-half of his or her support; or
    (G) An illegitimate child of a spouse of a former member who resides 
with or in a home provided by a former member or the former member's 
spouse at the time of death of the former member, and is, or continues 
to be, or was, dependent upon the former member for

[[Page 86]]

more than one-half of his or her support at the time of death; or
    (H) An individual who falls into one of the following classes:
    (1) A student. A child determined to be a member of one of the 
classes in paragraphs (b)(2)(ii)(A) through (b)(2)(ii)(G) of this 
section, who is not married, has passed his or her 21st birthday but has 
not passed his or her 23rd birthday, is dependent upon the member or 
former member for over 50 percent of his or her support or was dependent 
upon the member or former member for over 50 percent of his or her 
support on the date of the member's or former member's death, and is 
pursuing a full-time course of education in an institution of higher 
learning approved by the Secretary of Defense or the Department of 
Education (as appropriate) or by a state agency under 38 U.S.C. chapters 
34 and 35.

    Note: Courses of education offered by institutions listed in the 
``Education Directory,'' ``Higher Education'' or ``Accredited Higher 
Institutions'' issued periodically by the Department of Education meet 
the criteria approved by the Administering Secretary or the Secretary of 
Education. For determination of approval of courses offered by a foreign 
institution, by an institution not listed in either of the above 
directories, or by an institution not approved by a state agency 
pursuant to 38 U.S.C. chapters 34 and 35, a statement may be obtained 
from the Department of Education, Washington, D.C. 20202.

    (2) An incapacitated child. A child determined to be a member of one 
of the classes in paragraphs (b)(2)(ii)(A) through (b)(2)(ii)(G) of this 
section, who is not married and is incapable of self-support because of 
a mental or physical disability that:
    (i) Existed before the child's twenty-first (21st) birthday; or
    (ii) Occurred between the ages of 21 and 23 while the child was 
enrolled in a full-time course of study in an institution of higher 
learning approved by the Administering Secretary or the Department of 
Education (see NOTE to paragraph (b)(2)(ii)(H)(2)(iii) of this section), 
and is or was at the time of the member's or former member's death 
dependent on the member or former member for over one-half of his or her 
support; and
    (iii) The incapacity is continuous. (If the incapacity significantly 
improves or ceases at any time, CHAMPUS eligibility cannot be reinstated 
on the basis of the incapacity, unless the incapacity recurs and the 
beneficiary is under age 21, or is under age 23 and is enrolled as a 
full-time student under paragraph (b)(2)(ii)(H)(2)(ii) of this section. 
If the child was not incapacitated after that date, no CHAMPUS 
eligibility exists on the basis of the incapacity. However, 
incapacitated children who marry and who subsequently become unmarried 
through divorce, annulment, or death of spouse, may be reinstated as 
long as they still meet all other requirements).

    Note: An institution of higher learning is a college, university, or 
similar institution, including a technical or business school, offering 
post-secondary level academic instruction that leads to an associate or 
higher degree, if the school is empowered by the appropriate State 
education authority under State law to grant an associate, or higher, 
degree. When there is no State law to authorize the granting of a 
degree, the school may be recognized as an institution of higher 
learning if it is accredited for degree programs by a recognized 
accrediting agency. The term also shall include a hospital offering 
educational programs at the post-secondary level regardless of whether 
the hospital grants a post-secondary degree. The term also shall include 
an educational institution that is not located in a State, that offers a 
course leading to a standard college degree, or the equivalent, and that 
is recognized as such by the Secretary of Education (or comparable 
official) of the country, or other jurisdiction, in which the 
institution is located (38 U.S.C. chapter 34, section 1661, and chapter 
35, section 1701.
    Courses of education offered by institutions listed in the 
``Education Directory,'' ``Higher Education'' or ``Accredited Higher 
Institutions'' issued periodically by the Department of Education meet 
the criteria approved by the Administering Secretary or the Secretary of 
Education. For determination of approval of courses offered by a foreign 
institution, by an institution not listed in either of the above 
directories, or by an institution not approved by a state agency 
pursuant to chapters 34 and 35 of 38 U.S.C., a statement may be obtained 
from the Department of Education, Washington, D.C. 20202.

    (3) A child of a deceased reservist. A child, who is determined to 
be a member of one of the classes in paragraphs (b)(2)(ii)(A) through 
(b)(2)(ii)(G) of this section, of a reservist in a Uniformed

[[Page 87]]

Service who incurs or aggravates an injury, illness, or disease, during, 
or on the way to or from, active duty training for a period of 30 days 
or less or inactive duty training, and the reservist dies as a result of 
that specific injury, illness or disease.
    (4) A child placed in legal custody of a member or former member. A 
child who is placed in legal custody of a member or former member by a 
court or who is placed in the home of a member or former member by a 
recognized placement agency in anticipation of the legal adoption of the 
child.
    (iii) Abused dependents.--(A) Categories of abused dependents. An 
abused dependent may be either a spouse or a child. Eligibility for 
either class of abused dependent results from being either:
    (1) The spouse (including a former spouse) or child of a member who 
has received a dishonorable or bad-conduct discharge, or dismissal from 
a Uniformed Service as a result of a court-martial conviction for an 
offense involving physical or emotional abuse of the spouse or child, or 
was administratively discharged as a result of such an offense. Until 
October 17, 1998, Medical benefits are limited to care related to the 
physical or emotional abuse and for a period of 12 months following the 
member's separation from the Uniformed Service. On or after October 17, 
1998, medical benefits can include all under the Basic Program and under 
the Extended Care Health Option for the period that the spouse or child 
is in receipt of transitional compensation under section 1059 of title 
10 U.S.C.
    (2) The spouse (including a former spouse) or child of a member or 
former member who while a member and as a result of misconduct involving 
abuse of the spouse or child has eligibility to receive retired pay on 
the basis of years of service terminated.
    (B) Requirements for categories of abused dependents--(1) Abused 
spouse. As long as the spouse is receiving payments from the DoD 
Military Retirement Fund under court order, the spouse is eligible for 
health care under the same conditions as any spouse of a retired member. 
The abused spouse must:
    (i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a lawful 
husband or wife or a former spouse of the member; or
    (ii) Under paragraph (b)(2)(iii)(A)(2) of this section, be a lawful 
husband or wife or a former spouse of the member or former member, and 
the spouse is receiving payments from the Department of Defense Military 
Retirement Fund under 10 U.S.C. 1408(h) pursuant to a court order; and
    (A) Be a victim of the abuse; and
    (B) Have been married to the member or former member at the time of 
the abuse; or
    (C) Be the natural or adoptive parent of a dependent child of the 
member or former member who was the victim of the abuse.
    (2) Abused child. The abused child must:
    (i) Under paragraph (b)(2)(iii)(A)(1) of this section, be a 
dependent child of the member or former member.
    (ii) Under paragraph (b)(2)(iii)(A)(2) of this section,
    (A) Have been a member of the household where the abuse occurred; 
and
    (B) Be an unmarried legitimate child, including an adopted child or 
stepchild of the member or former member; and
    (C) Be under the age of 18; or
    (D) Be incapable of self support because of a mental or physical 
incapacity that existed before becoming 18 years of age and be dependent 
on the member or former member for over one-half of his or her support; 
or
    (E) If enrolled in a full-time course of study in an institution of 
higher learning recognized by the Secretary of Defense (for the purposed 
of 10 U.S.C. 1408(h)), be under 23 years of age and be dependent on the 
member or former member for over one-half of his or her support.
    (F) The dependent child is eligible for health care, regardless of 
whether any court order exists, under the same conditions as any 
dependent of a retired member.
    (3) TAMP eligibles. A former member, including his or her 
dependents, who is eligible under the provisions of the Transitional 
Assistance Management Program as described in paragraph (e) of this 
Sec. 199.3.

[[Page 88]]

    (3) Eligibility under TRICARE Senior Pharmacy Program. Section 711 
of the National Defense Authorization Act for Fiscal Year 2001 (Public 
Law 106-398, 114 Stat. 1654) established the TRICARE Senior Pharmacy 
Program effective April 1, 2001. To be eligible for this program, a 
person is required to be:
    (i) Medicare eligible, who is:
    (A) 65 years of age or older; and
    (B) Entitled to Medicare Part A; and
    (C) Enrolled in Medicare Part B, except for a person who attained 
age 65 prior to April 1, 2001, is not required to enroll in Part B; and
    (ii) Otherwise qualified under one of the following categories:
    (A) A retired uniformed service member who is entitled to retired or 
retainer pay, or equivalent pay including survivors who are annuitants; 
or
    (B) A dependent of a member of the uniformed services described in 
one of the following:
    (1) A member who is on active duty for a period of more than 30 days 
or died while on such duty; or
    (2) A member who died from an injury, illness, or disease incurred 
or aggravated while the member was:
    (i) On active duty under a call or order to active duty of 30 days 
or less, on active duty for training, or on inactive duty training; or
    (ii) Traveling to or from the place at which the member was to 
perform or had performed such active duty, active duty for training, or 
inactive duty training.
    Note to paragraph (b)(3)(ii)(B):
    Dependent under Section 711 of the National Defense Authorization 
Act for Fiscal Year 2001 includes spouse, unremarried widow/widower, 
child, parent/parent-in-law, unremarried former spouse, and unmarried 
person in the legal custody of a member or former member, as those terms 
of dependency are defined and periods of eligibility are set forth in 10 
U.S.C. 1072(2).
    (4) Medal of Honor recipients. (i) A former member of the armed 
forces who is a Medal of Honor recipient and who is not otherwise 
entitled to medical and dental benefits has the same CHAMPUS eligibility 
as does a retiree.
    (ii) Immediate dependents. CHAMPUS eligible dependents of a Medal of 
Honor Recipient are those identified in paragraphs (b)(2)(i) of this 
section (except for former spouses) and (b)(2)(ii) of this section 
(except for a child placed in legal custody of a Medal of Honor 
recipient under (b)(2)(ii)(H)(4) of this section).
    (iii) Effective date. The CHAMPUS eligibility established by 
paragraphs (b)(4)(i) and (ii) of this section is applicable to health 
care services provided on or after October 30, 2000.
    (5) Reserve Component Members Issued Delayed-Effective-Date Orders. 
(i) Member. A member of a reserve component of the armed forces who is 
ordered to active duty for a period of more than 30 consecutive days in 
support of a contingency operation under a provision of law referred to 
in section 101(a)(13)(B) of Title 10, United States Code, that provides 
for active-duty service to begin on a date after the date of the 
issuance of the order.
    (ii) Dependents. CHAMPUS eligible dependents under this paragraph 
(b)(5) are those identified in paragraphs (b)(2)(i) (except former 
spouses) and (b)(2)(ii) of this section.
    (iii) Effective date. The eligibility established by paragraphs 
(b)(5)(i) and (ii) of this section shall begin on or after November 6, 
2003, and shall be effective on the later of the date that is:
    (A) The date of issuance of the order referred to in paragraph 
(b)(5)(i) of this section; or
    (B) 90 days before the date on which the period of active duty is to 
begin.
    (iv) Termination date. The eligibility established by paragraphs 
(b)(5)(i) and (ii) of this section ends upon entry of the member onto 
active duty (at which time CHAMPUS eligibility for the dependents of the 
member is established under paragraph (b)(2) of this section) or upon 
cancellation or amendment of the orders referred to in paragraph 
(b)(5)(i) of this section such that they no longer meet the requirements 
of that paragraph (b)(5)(i).
    (c) Beginning dates of eligibility. (1) Beginning dates of 
eligibility depend on the class to which the individual belongs and the 
date the individual became a member of the class. Those who join after 
the class became eligible attain individual eligibility on the date they 
join.
    (2) Beginning dates of eligibility for each class of spouse 
(excluding spouses

[[Page 89]]

who are victims of abuse and eligible spouses of certain deceased 
reservists) are as follows:
    (i) A spouse of a member for:
    (A) Medical benefits authorized by the Dependents' Medical Care Act 
of 1956, December 7, 1956;
    (B) Outpatient medical benefits under the Basic Program, October 1, 
1966;
    (C) Inpatient medical benefits under the Basic Program and benefits 
under the Extended Care Health Option, January 1, 1967;
    (ii) A spouse of a former member:
    (A) For medical benefits under the Basic Program, January 1, 1967.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (iii) A former spouse:
    (A) For medical benefits under the Basic Program, dates of beginning 
eligibility are as indicated for each category of eligible former spouse 
identified within paragraph (b)(2)(i) of this section.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (3) Beginning dates of eligibility for spouses who are victims of 
abuse (excluding spouses who are victims of abuse of certain deceased 
reservists) are as follows:
    (i) An abused spouse meeting the requirements of paragraph 
(b)(2)(iii)(A)(1) of this section, including an eligible former spouse:
    (A) For medical and dental care for problems associated with the 
physical or emotional abuse under the Basic Program for a period of up 
to one year (12 months) following the person's separation from the 
Uniformed Service, November 14, 1986.
    (B) For all medical and dental benefits under the Basic Program for 
the period that the spouse is in receipt of transitional compensation 
under section 1059 of title 10 U.S.C., October 17, 1998.
    (C) For medical and dental care for problems associated with the 
physical or emotional abuse under the Extended Care Health Option for a 
period up to one year (12 months) following the person's separation from 
the Uniformed Service, November 14, 1986.
    (D) For all medical and dental benefits described in section 199.5 
for the period that the spouse is in receipt of transitional 
compensation under section 1059 of title 10 U.S.C., October 17, 1998.
    (ii) An abused spouse meeting the requirements of paragraphs 
(b)(2)(iii)(A)(2) of this section, including an eligible former spouse:
    (A) For all benefits under the CHAMPUS Basic Program, October 23, 
1992.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (4) Beginning dates of eligibility for spouses of certain deceased 
reservists, including spouses who are victims of abuse of certain 
deceased reservists, are as follows:
    (i) A spouse meeting the requirements of paragraph (b)(2)(i) of this 
section, including an eligible former spouse:
    (A) For benefits under the Basic Program, November 14, 1986.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (ii) An abused spouse of certain deceased reservists, meeting the 
requirements of paragraphs (b)(2)(iii) of this section, including an 
eligible former spouse, for the limited benefits and period of 
eligibility described in paragraphs (b)(2)(iii) of this section:
    (A) For benefits under the Basic Program, November 14, 1986.
    (B) For benefits under the Extended Care Health Option, November 14, 
1986.
    (iii) An abused spouse of certain deceased reservists, including an 
eligible former spouse, meeting the requirements of paragraphs 
(b)(2)(iii) of this section:
    (A) For benefits under the Basic Program, October 23, 1992.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (5) Beginning dates of eligibility for each class of dependent 
children, (excluding dependent children of certain deceased reservists, 
abused children and incapacitated children whose incapacity occurred 
between the ages of 21 and 23 while enrolled in a full-time course of 
study in an institution of higher learning), are as follows:
    (i) Legitimate child, adopted child, or legitimate stepchild of a 
member, for:

[[Page 90]]

    (A) Medical benefits authorized by the Dependents' Medical Care Act 
of 1956, December 7, 1956;
    (B) Outpatient medical benefits under the Basic Program, October 1, 
1966;
    (C) Inpatient medical benefits under the Basic Program and benefits 
under the Extended Care Health Option, January 1, 1967;
    (ii) Legitimate child, adopted child or legitimate stepchild of 
former members:
    (A) For medical benefits under the Basic Program, January 1, 1967.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (iii) Illegitimate child of a male or female member or former member 
whose paternity/maternity has been determined judicially and the member 
or former member has been directed to support the child, for:
    (A) All benefits for which otherwise entitled, August 31, 1972.
    (B) Extended Care Health Option benefits limited to dependent 
children of members only, August 31, 1972.
    (iv) Illegitimate child of:
    (A) A male member or former member whose paternity has not been 
determined judicially:
    (B) A female member or former member who resides with, or in a home 
provided by the member or former member, or who was residing in a home 
provided by the member or former member at the time of the member's or 
former member's death, and who is or continues to be dependent on the 
member for over one-half of his or her support, or was so dependent on 
the member or former member at the time of death;
    (C) A spouse of a member or former member who resides with or in a 
home provided by the member or former member, or the parent who is the 
spouse of the member or former member or was the spouse of a member or 
former member at the time of death, and who is and continues to be 
dependent upon the member or former member for over one-half of his or 
her support, or was so dependent on the member or former member at the 
time of death; for:
    (1) All benefits for which otherwise eligible, January 1, 1969.
    (2) Extended Care Health Option limited to dependent children of 
members only, January 1, 1969.
    (6) Beginning dates of eligibility for children of certain deceased 
reservists who meet the requirements of paragraph (b)(2)(ii)(H)(3) of 
this section, excluding incapacitated children who meet the requirements 
of paragraph (b)(2)(ii)(H)(2) of this section, for:
    (i) Benefits under the Basic program, November 14, 1986.
    (ii) Not eligible for benefits under the Extended Care Health 
Option.
    (7) Beginning dates of eligibility for children who are victims of 
abuse, including incapacitated children who meet the requirements of 
paragraph (b)(2)(ii)(H)(2) of this section are as follows:
    (i) An abused child meeting the requirements of paragraph 
(b)(2)(iii)(A)(1) of this section:
    (A) Medical and dental care for problems associated with the 
physical or emotional abuse under the Basic Program for a period of up 
to one year (12 months) following the person's separation from the 
Uniformed Service, November 14, 1986.
    (B) For all medical and dental benefits under the Basic Program for 
the period that the child is in receipt of transitional compensation 
under section 1059 of title 10 U.S.C., October 17, 1998.
    (C) Medical and dental care for problems associated with the 
physical or emotional abuse under the Extended Care Health Option for a 
period up to one year (12 months) following the person's separation from 
the Uniformed Service, November 14, 1986.
    (D) For all medical and dental benefits described in section 199.5 
for the period that the child is in receipt of transitional compensation 
under section 1059 of title 10 U.S.C., October 17, 1998.
    (ii) An abused child meeting the requirements of paragraphs 
(b)(2)(iii)(A)(2) of this section:
    (A) For all benefits under the CHAMPUS Basic Program, October 23, 
1992.
    (B) Ineligible for benefits under the Extended Care Health Option.
    (8) Beginning dates of eligibility for incapacitated children who 
meet the

[[Page 91]]

requirements of paragraph (b)(2)(ii)(H)(2) of this section, whose 
incapacity occurred between the ages of 21 and 23 while enrolled in a 
full-time course of study in an institution of higher learning approved 
by the Administering Secretary or the Department of Education, and, are 
or were at the time of the member's or former member's death, dependent 
on the member or former member for over one-half of their support, for:
    (i) All benefits for which otherwise entitled, October 23, 1992.
    (ii) Extended Care Health Option benefits limited to children of 
members only, October 23, 1992.
    (9) Beginning dates of eligibility for a child who meets the 
requirements of paragraph (b)(2)(ii)(H)(4) and:
    (i) Has been placed in custody by a court:
    (A) All benefits for which entitled, July 1, 1994.
    (B) Extended Care Health Option benefits limited to children of 
members only, July 1, 1994.
    (ii) Has been placed in custody by a recognized adoption agency:
    (A) All benefits for which entitled, October 5, 1994.
    (B) Extended Care Health Option benefits limited to children of 
members only, October 5, 1994.
    (10) Beginning dates of eligibility for a retiree for:
    (i) Medical benefits under the Basic Program January 1, 1967.
    (ii) Retirees and their dependents are not eligible for benefits 
under the Extended Care Health Option.
    (d) Dual eligibility. Dual eligibility occurs when a person is 
entitled to benefits from two sources. For example, when an active duty 
member is also the dependent of another active duty member, a retiree, 
or a deceased active duty member or retiree, dual eligibility, that is, 
entitlement to direct care from the Uniformed Services medical care 
system and CHAMPUS is the result. Since the active duty status is 
primary, and it is the intent that all medical care be provided an 
active duty member through the Uniformed Services medical care system, 
CHAMPUS eligibility is terminated as of 12:01 a.m. on the day following 
the day the dual eligibility begins. However, any dependent children in 
a marriage of two active duty persons or of an active duty member and a 
retiree, are CHAMPUS eligible in the same manner as dependent children 
of a marriage involving only one CHAMPUS sponsor. Should a spouse or 
dependent who has dual eligibility leave active duty status, that 
person's CHAMPUS eligibility is reinstated as of 12:01 a.m. of the day 
active duty ends, if he or she otherwise is eligible as a dependent of a 
CHAMPUS sponsor.

    Note: No CHAMPUS eligibility arises as the result of the marriage of 
two active duty members.

    (e) Eligibility under the Transitional Assistance Management Program 
(TAMP). (1) A member of the armed forces is eligible for transitional 
health care if the member is:
    (i) A member who is involuntarily separated from active duty.
    (ii) A member of a Reserve component who is separated from active 
duty to which called or ordered in support of a contingency operation if 
the active duty is active duty for a period of more than 30 consecutive 
days.
    (iii) A member who is separated from active duty for which the 
member is involuntarily retained under 10 U.S.C. 12305 in support of a 
contingency operation; or
    (iv) A member who is separated from active duty served pursuant to a 
voluntary agreement of the member to remain on active duty for a period 
of less than 1 year in support of a contingency operation.
    (2) A spouse (as described in paragraph (b)(2)(i) of this section 
except former spouses) and child (as described in paragraph (b)(2)(ii) 
of this section) of a member described in paragraph (e)(1) of this 
section is also eligible for TAMP benefits under TRICARE.
    (3) TAMP benefits under TRICARE begin on the day after the member is 
separated from active duty, and, if such separation occurred on or after 
November 6, 2003, and end 180 days after such date. TRICARE benefits 
available to both the member and eligible family members are generally 
those available to family members of members of the uniformed services 
under this Part. Each branch of service will determine eligibility for 
its members and eligible

[[Page 92]]

family members and provide data to DEERS.
    (f) Changes in status which result in termination of CHAMPUS 
eligibility. Changes in status which result in a loss of CHAMPUS 
eligibility as of 12:01 a.m. of the day following the day the event 
occurred, unless otherwise indicated, are as follows:
    (1) Changes in the status of a member. (i) When an active duty 
member's period of active duty ends, excluding retirement or death.
    (ii) When an active duty member is placed on desertion status 
(eligibility is reinstated when the active duty member is removed from 
desertion status and returned to military control).

    Note: A member serving a sentence of confinement in conjunction with 
a sentence of punitive discharge is still considered on active duty 
until such time as the discharge is executed.

    (2) Changes in the status of a retiree. (i) When a retiree ceases to 
be entitled to retired, retainer, or equivalent pay for any reason, the 
retiree's dependents lose their eligibility unless the dependent is 
otherwise eligible (e.g., some former spouses, some dependents who are 
victims of abuse and some incapacitated children as outlined in 
paragraph (b)(2)(ii)(H)(2) of this section).
    (ii) A retiree also loses eligibility when no longer entitled to 
retired, retainer, or equivalent pay.

    Note: A retiree who waives his or her retired, retainer or 
equivalent pay is still considered a retiree for the purposes of CHAMPUS 
eligibility.

    (3) Changes in the status of a dependent. (i) Divorce, except for 
certain classes of former spouses as provided in paragraph (b)(2)(i) of 
this section and the member or former member's own children (i.e., 
legitimate, adopted, and judicially determined illegitimate children).

    Note: An unadopted stepchild loses eligibility as of 12:01 a.m. of 
the day following the day the divorce becomes final.

    (ii) Annulment, except for certain classes of former spouse as 
provided in paragraph (b)(2)(i) of this section and the member or former 
member's own children (i.e., legitimate, adopted, and judicially 
determined illegitimate children).

    Note: An unadopted stepchild loses eligibility as of 12:01 a.m. of 
the day following the day the annulment becomes final.

    (iii) Adoption, except for adoptions occurring after the death of a 
member or former member.
    (iv) Marriage of a child, except when the marriage is terminated by 
death, divorce, or annulment before the child is 21 or 23 if an 
incapacitated child as provided in paragraph (b)(2)(ii)(H)(2) of this 
section.
    (v) Marriage of a widow or widower, except for the child of the 
widow or widower who was the stepchild of the deceased member or former 
member at the time of death. The stepchild continues CHAMPUS eligibility 
as other classes of dependent children.
    (vi) Attainment of entitlement to hospital insurance benefits (Part 
A) under Medicare except as provided in paragraphs (b)(3), (f)(3)(vii), 
(f)(3)(viii), and (f)(3)(ix) of this section. (This also applies to 
individuals living outside the United States where Medicare benefits are 
not available.)
    (vii) Attainment of age 65, except for dependents of active duty 
members, beneficiaries not entitled to part A of Medicare, beneficiaries 
entitled to Part A of Medicare who have enrolled in Part B of Medicare, 
and as provided in paragraph (b)(3) of this section. For those who do 
not retain CHAMPUS, CHAMPUS eligibility is lost at 12:01 a.m. on the 
first day of the month in which the beneficiary becomes entitled to 
Medicare.

    Note: If the person is not eligible for Part A of Medicare, he or 
she must file a Social Security Administration, ``Notice of 
Disallowance'' certifying to that fact with the Uniformed Service 
responsible for the issuance of his or her identification card so a new 
card showing CHAMPUS eligibility can be issued. Individuals entitled 
only to supplementary medical insurance (Part B) of Medicare, but not 
Part A, or Part A through the Premium HI provisions (provided for under 
the 1972 Amendments to the Social Security Act) retain eligibility under 
CHAMPUS (refer to Sec. 199.8 for additional information when a double 
coverage situation is involved).
    (viii) End stage renal disease. All beneficiaries, except dependents 
of active duty members, lose their CHAMPUS eligibility when Medicare 
coverage becomes available to a person because of chronic renal disease 
unless

[[Page 93]]

the following conditions have been met. CHAMPUS eligibility will 
continue if:
    (A) The individual is under 65 years old;
    (B) The individual became eligible for Medicare under the provisions 
of 42 U.S.C. 426-1(a);
    (C) The individual is enrolled in Part B of Medicare; and
    (D) The individual has applied and qualified for continued CHAMPUS 
eligibility through the Defense Enrollment Eligibility Reporting System 
(DEERS).
    (ix) Individuals with certain disabilities. Each case relating to 
Medicare eligibility resulting from being disabled requires individual 
investigation. All beneficiaries except dependents of active duty 
members lose their CHAMPUS eligibility when Medicare coverage becomes 
available to a disabled person unless the following conditions have been 
met. CHAMPUS eligibility will continue if:
    (A) The individual is under 65 years old;
    (B) The individual became eligible for Medicare under the provisions 
of 42 U.S.C. 426(b)(2);
    (C) The individual is enrolled in Part B of Medicare; and
    (D) The individual has applied and qualified for continued CHAMPUS 
eligibility through the Defense Enrollment Eligibility Reporting System 
(DEERS).
    (x) Disabled students, that is children age 21 or 22, who are 
pursuing a full-time course of higher education and who, either during 
the school year or between semesters, suffer a disabling illness or 
injury with resultant inability to resume attendance at the institution 
remain eligible for CHAMPUS medical benefits for 6 months after the 
disability is removed or until the student passes his or her 23rd 
birthday, whichever occurs first. However, if recovery occurs before the 
23rd birthday and there is resumption of a full-time course of higher 
education, CHAMPUS benefits can be continued until the 23rd birthday. 
The normal vacation periods during an established school year do not 
change the eligibility status of a dependent child 21 or 22 years old in 
a full time student status. Unless an incapacitating condition existed 
before, and at the time of, a dependent child's 21st birthday, a 
dependent child 21 or 22 years old in student status does not have 
eligibility and may not qualify for eligibility under the requirements 
related to mental or physical incapacity as described in paragraph 
(b)(2)(ii)(H)(2) of this section.
    (g) Reinstatement of CHAMPUS eligibility. Circumstances which result 
in reinstatement of CHAMPUS eligibility are as follows:
    (1) End Stage renal disease. Unless CHAMPUS eligibility has been 
continued under paragraph (f)(3)(viii) of the section, when Medicare 
eligibility ceases for end-stage renal disease patients, CHAMPUS 
eligibility resumes if the person is otherwise still eligible. He or she 
is required to take action to be reinstated as a CHAMPUS beneficiary and 
to obtain a new identification card.
    (2) Disability. Some disabilities are permanent, others temporary. 
Each case must be reviewed individually. Unless CHAMPUS eligibility has 
been continued under paragraph (f)(3)(ix) of this section, when 
disability ends and Medicare eligibility ceases, CHAMPUS eligibility 
resumes if the person is otherwise still eligible. Again, he or she is 
required to take action to obtain a new CHAMPUS identification card.
    (h) Determination of eligibility status. Determination of an 
individual's eligibility as a CHAMPUS beneficiary is the primary 
responsibility of the Uniformed Service in which the member or former 
member is, or was, a member, or in the case of dependents of a NATO 
military member, the Service that sponsors the NATO member. For the 
purpose of program integrity, the appropriate Uniformed Service shall, 
upon request of the Director, OCHAMPUS, review the eligibility of a 
specific person when there is reason to question the eligibility status. 
In such cases, a report on the results of the review and any action 
taken will be submitted to the Director, OCHAMPUS, or a designee.
    (i) Procedures for determination of eligibility. Procedures for the 
determination of eligibility are prescribed within the Department of 
Defense Instruction

[[Page 94]]

1000.13 available at local military facilities personnel offices.
    (j) CHAMPUS procedures for verification of eligibility. (1) 
Eligibility for CHAMPUS benefits will be verified through the Defense 
Enrollment Eligibility Reporting System (DEERS) maintained by the 
Uniformed Services, except for abused dependents as set forth in 
paragraph (b)(2)(iii) of this section. It is the responsibility of the 
CHAMPUS beneficiary, or parent, or legal representative, when 
appropriate, to provide the necessary evidence required for entry into 
the DEERS file to establish CHAMPUS eligibility and to ensure that all 
changes in status that may affect eligibility be reported immediately to 
the appropriate Uniformed Service for action.
    (2) Ineligibility for CHAMPUS benefits may be presumed in the 
absence of prescribed eligibility evidence in the DEERS file.
    (3) The Director, OCHAMPUS, shall issue guidelines as necessary to 
implement the provisions of this section.

[64 FR 46135, Aug. 24, 1999, as amended at 66 FR 9654, Feb. 9, 2001; 66 
FR 16400, Mar. 26, 2001; 66 FR 40606, Aug. 3, 2001; 67 FR 15725, Apr. 3, 
2002; 68 FR 23032, Apr. 30, 2003; 68 FR 32361, May 30, 2003; 69 FR 
51564, Aug. 20, 2004; 69 FR 60554, Oct. 12, 2004; 70 FR 12802, Mar. 16, 
2005]



Sec. 199.4  Basic program benefits.

    (a) General. The CHAMPUS Basic Program is essentially a supplemental 
program to the Uniformed Services direct medical care system. The Basic 
Program is similar to private insurance programs, and is designed to 
provide financial assistance to CHAMPUS beneficiaries for certain 
prescribed medical care obtained from civilian sources.
    (1)(i) Scope of benefits. Subject to all applicable definitions, 
conditions, limitations, or exclusions specified in this part, the 
CHAMPUS Basic Program will pay for medically necessary services and 
supplies required in the diagnosis and treatment of illness or injury, 
including maternity care and well-baby care. Benefits include specified 
medical services and supplies provided to eligible beneficiaries from 
authorized civilian sources such as hospitals, other authorized 
institutional providers, physicians, other authorized individual 
professional providers, and professional ambulance service, prescription 
drugs, authorized medical supplies, and rental or purchase of durable 
medical equipment.
    (ii) Impact of TRICARE program. The basic program benefits set forth 
in this section are applicable to the basic CHAMPUS program. In areas in 
which the TRICARE program is implemented, certain provisions of Sec. 
199.17 will apply instead of the provisions of this section. In those 
areas, the provisions of Sec. 199.17 will take precedence over any 
provisions of this section with which they conflict.
    (2) Persons eligible for Basic Program benefits. Persons eligible to 
receive the Basic Program benefits are set forth in Sec. 199.3 of this 
part. Any person determined to be an eligible CHAMPUS beneficiary is 
eligible for Basic Program benefits.
    (3) Authority to act for CHAMPUS. The authority to make benefit 
determinations and authorize the disbursement of funds under CHAMPUS is 
restricted to the Director, OCHAMPUS; designated OCHAMPUS staff; 
Director, OCHAMPUSEUR; or CHAMPUS fiscal intermediaries. No other 
persons or agents (such as physicians, staff members of hospitals, or 
CHAMPUS health benefits advisors) have such authority.
    (4) Status of patient controlling for purposes of cost-sharing. 
Benefits for covered services and supplies described in this section 
will be extended either on an inpatient or outpatient cost-sharing basis 
in accordance with the status of the patient at the time the covered 
services and supplies were provided, unless otherwise specifically 
designated (such as for ambulance service or maternity care). For cost-
sharing provisions, refer to paragraph (f) of this section.
    (5) Right to information. As a condition precedent to the provision 
of benefits hereunder, OCHAMPUS or its CHAMPUS fiscal intermediaries 
shall be entitled to receive information from a physician or hospital or 
other person, institution, or organization (including a local, state, or 
U.S. Government agency) providing services or supplies to the 
beneficiary for which claims or requests for approval for benefits are

[[Page 95]]

submitted. Such information and records may relate to the attendance, 
testing, monitoring, or examination or diagnosis of, or treatment 
rendered, or services and supplies furnished to a beneficiary, and shall 
be necessary for the accurate and efficient administration of CHAMPUS 
benefits. Before a determination will be made on a request for 
preauthorization or claim of benefits, a beneficiary or sponsor must 
provide particular additional information relevant to the requested 
determination, when necessary. The recipient of such information shall 
in every case hold such records confidential except when:
    (i) Disclosure of such information is authorized specifically by the 
beneficiary;
    (ii) Disclosure is necessary to permit authorized governmental 
officials to investigate and prosecute criminal actions, or
    (iii) Disclosure is authorized or required specifically under the 
terms of the Privacy Act or Freedom of Information Act (refer to Sec. 
199.1(m) of this part).

For the purposes of determining the applicability of and implementing 
the provisions of Sec. Sec. 199.8, 199.11, and 199.12, or any provision 
of similar purpose of any other medical benefits coverage or 
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries may release, 
without consent or notice to any beneficiary or sponsor, to any person, 
organization, government agency, provider, or other entity any 
information with respect to any beneficiary when such release 
constitutes a routine use published in the Federal Register in 
accordance with DoD 5400.11-R (Privacy Act (5 U.S.C. 552a)). Before a 
person's claim of benefits will be adjudicated, the person must furnish 
to CHAMPUS information that reasonably may be expected to be in his or 
her possession and that is necessary to make the benefit determination. 
Failure to provide the requested information may result in denial of the 
claim.
    (6) Physical examinations. The Director, OCHAMPUS, or a designee, 
may require a beneficiary to submit to one or more medical (including 
psychiatric) examinations to determine the beneficiary's entitlement to 
benefits for which application has been made or for otherwise authorized 
medically necessary services and supplies required in the diagnosis or 
treatment of an illness or injury (including maternity and well-baby 
care). When a medical examination has been requested, CHAMPUS will 
withhold payment of any pending claims or preauthorization requests on 
that particular beneficiary. If the beneficiary refuses to agree to the 
requested medical examination, or unless prevented by a medical reason 
acceptable to OCHAMPUS, the examination is not performed within 90 days 
of initial request, all pending claims for services and supplies will be 
denied. A denial of payments for services or supplies provided before 
(and related to) the request for a physical examination is not subject 
to reconsideration. The medical examination and required beneficiary 
travel related to performing the requested medical examination will be 
at the expense of CHAMPUS. The medical examination may be performed by a 
physician in a Uniformed Services medical facility or by an appropriate 
civilian physician, as determined and selected by the Director, 
OCHAMPUS, or a designee who is responsible for making such arrangements 
as are necessary, including necessary travel arrangements.
    (7) Claims filing deadline. For all services provided on or after 
January 1, 1993, to be considered for benefits, all claims submitted for 
benefits must, except as provided in Sec. 199.7, be filed with the 
appropriate CHAMPUS contractor no later than one year after the services 
are provided. Unless the requirement is waived, failure to file a claim 
within this deadline waives all rights to benefits for such services or 
supplies.
    (8) Double coverage and third party recoveries. CHAMPUS claims 
involving double coverage or the possiblity that the United States can 
recover all or a part of its expenses from a third party, are 
specifically subject to the provisions of Sec. 199.8 or Sec. 199.12 of 
this part as appropriate.
    (9) Nonavailability Statements within a 40-mile catchment area. In 
some geographic locations, it is necessary for CHAMPUS beneficiaries not 
enrolled in

[[Page 96]]

TRICARE Prime to determine whether the required inpatient mental health 
care can be provided through a Uniformed Service facility. If the 
required care cannot be provided, the hospital commander, or a designee, 
will issue a Nonavailability Statement (NAS) (DD Form 1251). Except for 
emergencies, as NAS should be issued before inpatient mental health care 
is obtained from a civilian source. Failure to secure such a statement 
may waive the beneficiary's rights to benefits under CHAMPUS/TRICARE.
    (i) Rules applicable to issuance of Nonavailability Statement (NAS) 
(DD Form 1251).
    (A) The ASD(HA) is responsible for issuing rules and regulations 
regarding Nonavailability Statements.
    (B) For CHAMPUS beneficiaries who are not enrolled in TRICARE Prime, 
an NAS is required for services in connection with nonemergency hospital 
inpatient mental health care if such services are available at a 
military treatment facility (MTF) located within a 40-mile radius of the 
residence of the beneficiary, except that a NAS is not required for 
services otherwise available at an MTF located within a 40-mile radius 
of the beneficiary's residence when another insurance plan or program 
provides the beneficiary's primary coverage for the services. This 
requirement for an NAS does not apply to beneficiaries enrolled in 
TRICARE Prime, even when those beneficiaries use the point-of-service 
option under Sec. 199.17(n)(3).
    (ii) Beneficiary responsibility. A CHAMPUS beneficiary who is not 
enrolled in TRICARE Prime is responsible for securing information 
whether or not he or she resides in a geographic area that requires 
obtaining a Nonavailability Statement. Information concerning current 
rules and regulations may be obtained from the Offices of the Army, 
Navy, and Air Force Surgeons General; or a representative of the TRICARE 
managed care support contractor's staff, or the Director, OCHAMPUS.
    (iii) Rules in effect at time civilian medical care is provided 
apply. The applicable rules and regulations regarding Nonavailability 
Statements in effect at the time the civilian care is rendered apply in 
determining whether a Nonavailability Statement is required.
    (iv) Nonavailability Statement (DD Form 1251) must be filed with 
applicable claim. When a claim is submitted for TRICARE benefits that 
includes services for which an NAS was issued, a valid NAS authorization 
must be on the DoD required system.
    (v) Nonavailability Statement (NAS) and Claims Adjudication. A NAS 
is valid for the adjudication of CHAMPUS claims for all related care 
otherwise authorized by this part which is received from a civilian 
source while the beneficiary resided within the Uniformed Service 
facility catchment area which issued the NAS.
    (vi) In the case of any service subject to an NAS requirement under 
paragraph (a)(9) of this section and also subject to a preadmission (or 
other pre-service) authorization requirement under Sec. 199.4 or Sec. 
199.15, the administrative processes for the NAS and pre-service 
authorization may be combined.
    (vii) With the exception of maternity services, the Assistant 
Secretary of Defense for Health Affairs (ASD(HA)) may require an NAS 
prior to TRICARE cost-sharing for additional services from civilian 
sources if such services are to be provided to a beneficiary who lives 
within a 40-mile catchment area of an MTF where such services are 
available and the ASD(HA):
    (A) Demonstrates that significant costs would be avoided by 
performing specific procedures at the affected MTF or MTFs; or
    (B) Determines that a specific procedure must be provided at the 
affected MTF or MTFs to ensure the proficiency levels of the 
practitioners at the MTF or MTFs; or
    (C) Determines that the lack of NAS data would significantly 
interfere with TRICARE contract administration; and
    (D) Provides notification of the ASD(HA)'s intent to require an NAS 
under this authority to covered beneficiaries who receive care at the 
MTF or MTFs that will be affected by the decision to require an NAS 
under this authority; and
    (E) Provides at least 60-day notification to the Committees on Armed 
Services of the House of Representatives

[[Page 97]]

and the Senate of the ASD(HA)'s intent to require an NAS under this 
authority, the reason for the NAS requirement, and the date that an NAS 
will be required.
    (10) [Reserved]
    (11) Quality and Utilization Review Peer Review Organization 
program. All benefits under the CHAMPUS program are subject to review 
under the CHAMPUS Quality and Utilization Review Peer Review 
Organization program pursuant to Sec. 199.15. (Utilization and quality 
review of mental health services are also part of the Peer Review 
Organization program, and are addressed in paragraph (a)(12) of this 
section.)
    (12) Utilization review, quality assurance and reauthorization for 
inpatient mental health services and partial hospitalization. (i) In 
general. The Director, OCHAMPUS shall provide, either directly or 
through contract, a program of utilization and quality review for all 
mental health care services. Among other things, this program shall 
include mandatory preadmission authorization before nonemergency 
inpatient mental health services may be provided and mandatory approval 
of continuation of inpatient services within 72 hours of emergency 
admissions. This program shall also include requirements for other 
pretreatment authorization procedures, concurrent review of continuing 
inpatient and partial hospitalization, retrospective review, and other 
such procedures as determined appropriate by the Director, OCHAMPUS. The 
provisions of paragraph (h) of this section and Sec. 199.15(f) shall 
apply to this program. The Director, OCHAMPUS, shall establish, pursuant 
to that Sec. 199.15(f), procedures substantially comparable to 
requirements of paragraph (h) of this section and Sec. 199.15. If the 
utilization and quality review program for mental health care services 
is provided by contract, the contractor(s) need not be the same 
contractor(s) as are engaged under Sec. 199.15 in connection with the 
review of other services.
    (ii) Preadmission authorization. (A) This section generally requires 
preadmission authorization for all non-emergency inpatient mental health 
services and prompt continued stay authorization after emergency 
admissions with the exception noted in paragraph (a)(12)(ii) of this 
section. It also requires preadmission authorization for all admissions 
to a partial hospitalization program, without exception, as the concept 
of an emergency admission does not pertain to a partial hospitalization 
level of care. Institutional services for which payment would otherwise 
be authorized, but which were provided without compliance with 
preadmission authorization requirements, do not qualify for the same 
payment that would be provided if the preadmission requirements had been 
met.
    (B) In cases of noncompliance with preauthorization requirements, a 
payment reduction shall be made in accordance with Sec. 
199.15(b)(4)(iii).
    (C) For purposes of paragraph (a)(12)(ii)(B) of this section, a day 
of services without the appropriate preauthorization is any day of 
services provided prior to:
    (1) The receipt of an authorization; or
    (2) The effective date of an authorization subsequently received.
    (D) Services for which payment is disallowed under paragraph 
(a)(12)(ii)(B) of this section may not be billed to the patient (or the 
patient's family).
    (E) Preadmission authorization for inpatient mental health services 
is not required in the following cases:
    (1) In the case of an emergency.
    (2) In a case in which benefits are payable for such services under 
part A of title XVIII of the Social Security Act (42 U.S.C. 1395c et 
seq.) subject to paragraph (a)(12)(iii) of this section.
    (3) In a case of inpatient mental health services in which paragraph 
(a)(12)(ii) of this section applies, the Secretary shall require advance 
authorization for a continuation of the provision of such services after 
benefits cease to be payable for such services under such part A.
    (13) Implementing instructions. The Director, OCHAMPUS shall issue 
policies, procedures, instructions, guidelines, standards and/or 
criteria to implement this section.
    (b) Institutional benefits. (1) General. Services and supplies 
provided by an institutional provider authorized as set

[[Page 98]]

forth in Sec. 199.6 may be cost-shared only when such services or 
supplies: are otherwise authorized by this part; are medically 
necessary; are ordered, directed, prescribed, or delivered by an 
OCHAMPUS-authorized individual professional provider as set forth in 
Sec. 199.6 or by an employee of the authorized institutional provider 
who is otherwise eligible to be a CHAMPUS authorized individual 
professional provider; are delivered in accordance with generally 
accepted norms for clinical practice in the United States; meet 
established quality standards; and comply with applicable definitions, 
conditions, limitations, exceptions, or exclusions as otherwise set 
forth in this part.
    (i) Billing practices. To be considered for benefits under Sec. 
199.4(b), covered services and supplies must be provided and billed for 
by a hospital or other authorized institutional provider. Such billings 
must be fully itemized and sufficiently descriptive to permit CHAMPUS to 
determine whether benefits are authorized by this part. Depending on the 
individual circumstances, teaching physician services may be considered 
an institutional benefit in accordance with Sec. 199.4(b) or a 
professional benefit under Sec. 199.4(c). See paragraph (c)(3)(xiii) of 
this section for the CHAMPUS requirements regarding teaching physicians. 
In the case of continuous care, claims shall be submitted to the 
appropriate CHAMPUS fiscal intermediary at least every 30 days either by 
the beneficiary or sponsor or, on a participating basis, directly by the 
facility on behalf of the beneficiary (refer to Sec. 199.7).
    (ii) Successive inpatient admissions. Successive inpatient 
admissions shall be deemed one inpatient confinement for the purpose of 
computing the active duty dependent's share of the inpatient 
institutional charges, provided not more than 60 days have elapsed 
between the successive admissions, except that successive inpatient 
admissions related to a single maternity episode shall be considered one 
confinement, regardless of the number of days between admissions. For 
the purpose of applying benefits, successive admissions will be 
determined separately for maternity admissions and admissions related to 
an accidental injury (refer to Sec. 199.4(f)).
    (iii) Related services and supplies. Covered services and supplies 
must be rendered in connection with and related directly to a covered 
diagnosis or definitive set of symptoms requiring otherwise authorized 
medically necessary treatment.
    (iv) Inpatient, appropriate level required. For purposes of 
inpatient care, the level of institutional care for which Basic Program 
benefits may be extended must be at the appropriate level required to 
provide the medically necessary treatment except for patients requiring 
skilled nursing facility care. For patients for whom skilled nursing 
facility care is adequate, but is not available in the general locality, 
benefits may be continued in the higher level care facility. General 
locality means an area that includes all the skilled nursing facilities 
within 50 miles of the higher level facility, unless the higher level 
facility can demonstrate that the skilled nursing facilities are 
inaccessible to its patients. The decision as to whether a skilled 
nursing facility is within the higher level facility's general locality, 
or the skilled nursing facility is inaccessible to the higher level 
facility's patients shall be a CHAMPUS contractor initial determination 
for the purposes of appeal under Sec. 199.10 of this part. CHAMPUS 
institutional benefit payments shall be limited to the allowable cost 
that would have been incurred in the skilled nursing facility, as 
determined by the Director, OCHAMPUS, or a designee. If it is determined 
that the institutional care can be provided reasonably in the home 
setting, no CHAMPUS institutional benefits are payable.
    (v) General or special education not covered. Services and supplies 
related to the provision of either regular or special education 
generally are not covered. Such exclusion applies whether a separate 
charge is made for education or whether it is included as a part of an 
overall combined daily charge of an institution. In the latter instance, 
that portion of the overall combined daily charge related to education 
must be determined, based on the allowable costs of the educational

[[Page 99]]

component, and deleted from the institution's charges before CHAMPUS 
benefits can be extended. The only exception is when appropriate 
education is not available from or not payable by the cognizant public 
entity. Each case must be referred to the Director, OCHAMPUS, or a 
designee, for review and a determination of the applicability of CHAMPUS 
benefits.
    (2) Covered hospital services and supplies--(i) Room and board. 
Includes special diets, laundry services, and other general housekeeping 
support services (inpatient only).
    (ii) General staff nursing services.
    (iii) ICU. Includes specialized units, such as for respiratory 
conditions, cardiac surgery, coronary care, burn care, or neurosurgery 
(inpatient only).
    (iv) Operating room, recovery room. Operating room and recovery 
room, including other special treatment rooms and equipment, and 
hyperbaric chamber.
    (v) Drugs and medicines. Includes sera, biologicals, and 
pharmaceutical preparations (including insulin) that are listed in the 
official formularies of the institution or facility at the time of use. 
(To be considered as an inpatient supply, drugs and medicines must be 
consumed during the specific period the beneficiary is a registered 
inpatient. Drugs and medicines prescribed for use outside the hospital, 
even though prescribed and obtained while still a registered inpatient, 
will be considered outpatient supplies and the provisions of paragraph 
(d) of this section will apply.)
    (vi) Durable medical equipment, medical supplies, and dressings. 
Includes durable medical equipment, medical supplies essential to a 
surgical procedure (such as artificial heart valve and artificial ball 
and socket joint), sterile trays, casts, and orthopedic hardware. Use of 
durable medical equipment is restricted to an inpatient basis.
    Note: If durable medical equipment is to be used on an outpatient 
basis or continued in outpatient status after use as an inpatient, 
benefits will be provided as set forth in paragraph (d) of this section 
and cost-sharing will be on an outpatient basis (refer to paragraph 
(a)(4) of this section).
    (vii) Diagnostic services. Includes clinical laboratory 
examinations, x-ray examinations, pathological examinations, and machine 
tests that produce hard-copy results. Also includes CT scanning under 
certain limited conditions.
    (viii) Anesthesia. Includes both the anesthetic agent and its 
administration.
    (ix) Blood. Includes blood, plasma and its derivatives, including 
equipment and supplies, and its administration.
    (x) Radiation therapy. Includes radioisotopes.
    (xi) Physical therapy.
    (xii) Oxygen. Includes equipment for its administration.
    (xiii) Intravenous injections. Includes solution.
    (xiv) Shock therapy.
    (xv) Chemotherapy.
    (xvi) Renal and peritoneal dialysis.
    (xvii) Psychological evaluation tests. When required by the 
diagnosis.
    (xviii) Other medical services. Includes such other medical services 
as may be authorized by the Director, OCHAMPUS, or a designee, provided 
they are related directly to the diagnosis or definitive set of symptoms 
and rendered by a member of the institution's medical or professional 
staff (either salaried or contractual) and billed for by the hospital.
    (3) Covered services and supplies provided by special medical 
treatment institutions or facilities, other than hospitals or RTCs--(i) 
Room and board. Includes special diets, laundry services, and other 
general housekeeping support services (inpatient only).
    (ii) General staff nursing services.
    (iii) Drugs and medicines. Includes sera, biologicals, and 
pharmaceutical preparations (including insulin) that are listed in the 
official formularies of the institution or facility at the time of use. 
(To be considered as an inpatient supply, drugs and medicines must be 
consumed during the specific period the beneficiary is a registered 
inpatient. Drugs and medicines prescribed for use outside the authorized 
institutional provider, even though prescribed and obtained while still 
a registered inpatient, will be considered outpatient supplies and the 
provisions of paragraph (d) of this section will apply.).
    (iv) Durable medical equipment, medical supplies, and dressings. 
Includes durable medical equipment, sterile trays, casts,

[[Page 100]]

orthopedic hardware and dressings. Use of durable medical equipment is 
restricted to an inpatient basis.
    Note: If the durable medical equipment is to be used on an 
outpatient basis or continued in outpatient status after use as an 
inpatient, benefits will be provided as set forth in paragraph (d) of 
this section, and cost-sharing will be on an outpatient basis (refer to 
paragraph (a)(4) of this section).
    (v) Diagnostic services. Includes clinical laboratory examinations, 
x-ray examinations, pathological examination, and machine tests that 
produce hard-copy results.
    (vi) Blood. Includes blood, plasma and its derivatives, including 
equipment and supplies, and its administration.
    (vii) Physical therapy.
    (viii) Oxygen. Includes equipment for its administration.
    (ix) Intravenous injections. Includes solution.
    (x) Shock therapy.
    (xi) Chemotherapy.
    (xii) Psychological evaluation tests. When required by the 
diagnosis.
    (xiii) Renal and peritoneal dialysis.
    (xiv) Skilled nursing facility (SNF) services. Covered services in 
SNFs are the same as provided under Medicare under section 1861(h) and 
(i) of the Social Security Act (42 U.S.C. 1395x(h) and (i)) and 42 CFR 
part 409, subparts C and D, except that the Medicare limitation on the 
number of days of coverage under section 1812(a) and (b) of the Social 
Security Act (42 U.S.C. 1395d(a) and (b)) and 42 CFR 409.61(b) shall not 
be applicable under TRICARE. Skilled nursing facility care for each 
spell of illness shall continue to be provided for as long as necessary 
and appropriate. For a SNF admission to be covered under TRICARE, the 
beneficiary must have a qualifying hospital stay meaning an inpatient 
hospital stay of three consecutive days or more, not including the 
hospital leave day. The beneficiary must enter the SNF within 30 days of 
leaving the hospital, or within such time as it would be medically 
appropriate to begin an active course of treatment, where the 
individual's condition is such that SNF care would not be medically 
appropriate within 30 days after discharge from a hospital. The skilled 
services must be for a medical condition that was either treated during 
the qualifying three-day hospital stay, or started while the beneficiary 
was already receiving covered SNF care. Additionally, an individual 
shall be deemed not to have been discharged from a SNF, if within 30 
days after discharge from a SNF, the individual is again admitted to a 
SNF. Adoption by TRICARE of most Medicare coverage standards does not 
include Medicare coinsurance amounts. Extended care services furnished 
to an inpatient of a SNF by such SNF (except as provided in paragraphs 
(b)(3)(xiv)(C), (b)(3)(xiv)(F), and (b)(3)(xiv)(G) of this section) 
include:
    (A) Nursing care provided by or under the supervision of a 
registered professional nurse;
    (B) Bed and board in connection with the furnishing of such nursing 
care;
    (C) Physical or occupational therapy or speech-language pathology 
services furnished by the SNF or by others under arrangements with them 
by the facility;
    (D) Medical social services;
    (E) Such drugs, biological, supplies, appliances, and equipment, 
furnished for use in the SNF, as are ordinarily furnished for the care 
and treatment of inpatients;
    (F) Medical services provided by an intern or resident-in-training 
of a hospital with which the facility has such an agreement in effect; 
and
    (G) Such other services necessary to the health of the patients as 
are generally provided by SNFs, or by others under arrangements with 
them made by the facility.
    (xv) Other medical services. Other medical services may be 
authorized by the Director, OCHAMPUS, or a designee, provided they are 
related directly to the diagnosis or definitive set of symptoms and 
rendered by a member of the institution's medical or professional staff 
(either salaried or contractual) and billed for by the authorized 
institutional provider of care.
    (4) Services and supplies provided by RTCs--(i) Room and board. 
Includes use of residential facilities such as food service (including 
special diets), laundry services, supervised reasonable recreational and 
social activity services, and other general services as considered 
appropriate by the Director, OCHAMPUS, or a designee.

[[Page 101]]

    (ii) Patient assessment. Includes the assessment of each child or 
adolescent accepted by the RTC, including clinical consideration of each 
of his or her fundamental needs, that is, physical, psychological, 
chronological age, developmental level, family, educational, social, 
environmental, and recreational.
    (iii) Diagnostic services. Includes clinical laboratory 
examinations, x-ray examinations, pathological examinations, and machine 
tests that produce hard-copy results.
    (iv) Psychological evaluation tests.
    (v) Treatment of mental disorders. Services and supplies that are 
medically or psychologically necessary to diagnose and treat the mental 
disorder for which the patient was admitted to the RTC. Covered services 
and requirements for qualifications of providers are as listed in 
paragraph (c)(3)(ix) of this section.
    (vi) Other necessary medical care. Emergency medical services or 
other authorized medical care may be rendered by the RTC provided it is 
professionally capable of rendering such services and meets standards 
required by the Director, OCHAMPUS. It is intended, however, that 
CHAMPUS payments to an RTC should primarily cover those services and 
supplies directly related to the treatment of mental disorders that 
require residential care.
    (vii) Criteria for determining medical or psychological necessity. 
In determining the medical or psychological necessity of services and 
supplies provided by RTCs, the evaluation conducted by the Director, 
OCHAMPUS (or designee) shall consider the appropriate level of care for 
the patient, the intensity of services required by the patient, and the 
availability of that care. In addition to the criteria set forth in this 
paragraph (b)(4) of this section, additional evaluation standards, 
consistent with such criteria, may be adopted by the Director, OCHAMPUS 
(or designee). RTC services and supplies shall not be considered 
medically or psychologically necessary unless, at a minimum, all the 
following criteria are clinically determined in the evaluation to be 
fully met:
    (A) Patient has a diagnosable psychiatric disorder.
    (B) Patient exhibits patterns of disruptive behavior with evidence 
of disturbances in family functioning or social relationships and 
persistent psychological and/or emotional disturbances.
    (C) RTC services involve active clinical treatment under an 
individualized treatment plan that provides for:
    (1) Specific level of care, and measurable goals/objectives relevant 
to each of the problems identified;
    (2) Skilled interventions by qualified mental health professionals 
to assist the patient and/or family;
    (3) Time frames for achieving proposed outcomes; and
    (4) Evaluation of treatment progress to include timely reviews and 
updates as appropriate of the patient's treatment plan that reflects 
alterations in the treatment regimen, the measurable goals/objectives, 
and the level of care required for each of the patient's problems, and 
explanations of any failure to achieve the treatment goals/objectives.
    (D) Unless therapeutically contraindicated, the family and/or 
guardian must actively participate in the continuing care of the patient 
either through direct involvement at the facility or geographically 
distant family therapy. (In the latter case, the treatment center must 
document that there has been collaboration with the family and/or 
guardian in all reviews.)
    (viii) Preauthorization requirement. (A) All admissions to RTC care 
are elective and must be certified as medically/psychologically 
necessary prior to admission. The criteria for preauthorization shall be 
those set forth in paragraph (b)(4)(vii) of this section. In applying 
those criteria in the context of preadmission authorization review, 
special emphasis is placed on the development of a specific diagnosis/
treatment plan, consistent with those criteria and reasonably expected 
to be effective, for that individual patient.
    (B) The timetable for development of the individualized treatment 
plan shall be as follows:
    (1) The plan must be under development at the time of the admission.
    (2) A preliminary treatment plan must be established within 24 hours 
of the admission.

[[Page 102]]

    (3) A master treatment plan must be established within ten calendar 
days of the admission.
    (C) The elements of the individualized treatment plan must include:
    (1) The diagnostic evaluation that establishes the necessity for the 
admission;
    (2) An assessment regarding the inappropriateness of services at a 
less intensive level of care;
    (3) A comprehensive, biopsychosocial assessment and diagnostic 
formulation;
    (4) A specific individualized treatment plan that integrates 
measurable goals/objectives and their required level of care for each of 
the patient's problems that are a focus of treatment;
    (5) A specific plan for involvement of family members, unless 
therapeutically contraindicated; and
    (6) A discharge plan, including an objective of referring the 
patient to further services, if needed, at less intensive levels of care 
within the benefit limited period.
    (D) Preauthorization requests should be made not fewer than two 
business days prior to the planned admission. In general, the decision 
regarding preauthorization shall be made within one business day of 
receipt of a request for preauthorization, and shall be followed with 
written confirmation. Preauthorizations are valid for the period of 
time, appropriate to the type of care involved, stated when the 
preauthorization is issued. In general, preauthorizations are valid for 
30 days.
    (ix) Concurrent review. Concurrent review of the necessity for 
continued stay will be conducted no less frequently than every 30 days. 
The criteria for concurrent review shall be those set forth in paragraph 
(b)(4)(vii) of this section. In applying those criteria in the context 
of concurrent review, special emphasis is placed on evaluating the 
progress being made in the active individualized clinical treatment 
being provided and on developing appropriate discharge plans.
    (5) Extent of institutional benefits--(i) Inpatient room 
accommodations--(A) Semiprivate. The allowable costs for room and board 
furnished an individual patient are payable for semiprivate 
accommodations in a hospital or other authorized institution, subject to 
appropriate cost-sharing provisions (refer to paragraph (f) of this 
section). A semiprivate accommodation is a room containing at least two 
beds. Therefore, if a room publicly is designated by the institution as 
a semiprivate accommodation and contains multiple beds, it qualifies as 
semiprivate for the purpose of CHAMPUS.
    (B) Private. A room with one bed that is designated as a private 
room by the hospital or other authorized institutional provider. The 
allowable cost of a private room accommodation is covered only under the 
following conditions:
    (1) When its use is required medically and when the attending 
physician certifies that a private room is necessary medically for the 
proper care and treatment of a patient; or
    (2) When a patient's medical condition requires isolation; or
    (3) When a patient (in need of immediate inpatient care but not 
requiring a private room) is admitted to a hospital or other authorized 
institution that has semiprivate accommodations, but at the time of 
admission, such accommodations are occupied; or
    (4) When a patient is admitted to an acute care hospital (general or 
special) without semiprivate rooms.
    (C) Duration of private room stay. The allowable cost of private 
accommodations is covered under the circumstances described in paragraph 
(b)(5)(i)(B) of this section until the patient's condition no longer 
requires the private room for medical reasons or medical isolation; or, 
in the case of the patient not requiring a private room, when a 
semiprivate accommodation becomes available; or, in the case of an acute 
care hospital (general or special) which does not have semiprivate 
rooms, for the duration of an otherwise covered inpatient stay.
    (D) Hospital (except an acute care hospital, general or special) or 
other authorized institutional provider without semiprivate 
accommodations. When a beneficiary is admitted to a hospital (except an 
acute care hospital, general or special) or other institution that has 
no semiprivate accommodations, for any inpatient day when the patient 
qualifies for use of a private room (as set forth in paragraphs 
(b)(5)(i)(B) (1)

[[Page 103]]

and (2) of this section) the allowable cost of private accommodations is 
covered. For any inpatient day in such a hospital or other authorized 
institution when the patient does not require medically the private 
room, the allowable cost of semiprivate accommodations is covered, such 
allowable costs to be determined by the Director, OCHAMPUS, or a 
designee.
    (ii) General staff nursing services. General staff nursing services 
cover all nursing care (other than that provided by private duty nurses) 
including, but not limited to, general duty nursing, emergency room 
nursing, recovery room nursing, intensive nursing care, and group 
nursing arrangements. Only nursing services provided by nursing 
personnel on the payroll of the hospital or other authorized institution 
are eligible under paragraph (b) of this section. If a nurse who is not 
on the payroll of the hospital or other authorized institution is called 
in specifically to care for a single patient (individual nursing) or 
more than one patient (group nursing), whether the patient is billed for 
the nursing services directly or through the hospital or other 
institution, such services constitute private duty (special) nursing 
services and are not eligible for benefits under this paragraph (the 
provisions of paragraph (c)(2)(xv) of this section would apply).
    (iii) ICU. An ICU is a special segregated unit of a hospital in 
which patients are concentrated, by reason of serious illness, usually 
without regard to diagnosis. Special lifesaving techniques and equipment 
are available regularly and immediately within the unit, and patients 
are under continuous observation by a nursing staff specially trained 
and selected for the care of this type of patient. The unit is 
maintained on a continuing, rather than an intermittent or temporary, 
basis. It is not a postoperative recovery room or a postanesthesia room. 
In some large or highly specialized hospitals, the ICUs may be refined 
further for special purposes, such as for respiratory conditions, 
cardiac surgery, coronary care, burn care, or neurosurgery. For purposes 
of CHAMPUS, these specialized units would be considered ICUs if they 
otherwise conformed to the definition of an ICU.
    (iv) Treatment rooms. Standard treatment rooms include emergency 
rooms, operating rooms, recovery rooms, special treatment rooms, and 
hyperbaric chambers and all related necessary medical staff and 
equipment. To be recognized for purposes of CHAMPUS, treatment rooms 
must be so designated and maintained by the hospital or other authorized 
institutions on a continuing basis. A treatment room set up on an 
intermittent or temporary basis would not be so recognized.
    (v) Drugs and medicines. Drugs and medicines are included as a 
supply of a hospital or other authorized institution only under the 
following conditions:
    (A) They represent a cost to the facility rendering treatment;
    (B) They are furnished to a patient receiving treatment, and are 
related directly to that treatment; and
    (C) They are ordinarily furnished by the facility for the care and 
treatment of inpatients.
    (vi) Durable medical equipment, medical supplies, and dressings. 
Durable medical equipment, medical supplies, and dressings are included 
as a supply of a hospital or other authorized institution only under the 
following conditions:
    (A) If ordinarily furnished by the facility for the care and 
treatment of patients; and
    (B) If specifically related to, and in connection with, the 
condition for which the patient is being treated; and
    (C) If ordinarily furnished to a patient for use in the hospital or 
other authorized institution (except in the case of a temporary or 
disposable item); and
    (D) Use of durable medical equipment is limited to those items 
provided while the patient is an inpatient. If such equipment is 
provided for use on an outpatient basis, the provisions of paragraph (d) 
of this section apply.
    (vii) Transitional use items. Under certain circumstances, a 
temporary or disposable item may be provided for use beyond an inpatient 
stay, when such item is necessary medically to permit or facilitate the 
patient's departure from the hospital or other authorized institution, 
or which may be required

[[Page 104]]

until such time as the patient can obtain a continuing supply; or it 
would be unreasonable or impossible from a medical standpoint to 
discontinue the patient's use of the item at the time of termination of 
his or her stay as an inpatient.
    (viii) Anesthetics and oxygen. Anesthetics and oxygen and their 
administration are considered a service or supply if furnished by the 
hospital or other authorized institution, or by others under 
arrangements made by the facility under which the billing for such 
services is made through the facility.
    (6) Inpatient mental health services. Inpatient mental health 
services are those services furnished by institutional and professional 
providers for treatment of a nervous or mental disorder (as defined in 
Sec. 199.2) to a patient admitted to a CHAMPUS-authorized acute care 
general hospital; a psychiatric hospital; or, unless otherwise exempted, 
a special institutional provider.
    (i) Criteria for determining medical or psychological necessity. In 
determining the medical or psychological necessity of acute inpatient 
mental health services, the evaluation conducted by the Director, 
OCHAMPUS (or designee) shall consider the appropriate level of care for 
the patient, the intensity of services required by the patient, and the 
availability of that care. The purpose of such acute inpatient care is 
to stabilize a life-threatening or severely disabling condition within 
the context of a brief, intensive model of inpatient care in order to 
permit management of the patient's condition at a less intensive level 
of care. Such care is appropriate only if the patient requires services 
of an intensity and nature that are generally recognized as being 
effectively and safely provided only in an acute inpatient hospital 
setting. In addition to the criteria set forth in this paragraph (b)(6) 
of this section, additional evaluation standards, consistent with such 
criteria, may be adopted by the Director, OCHAMPUS (or designee). Acute 
inpatient care shall not be considered necessary unless the patient 
needs to be observed and assessed on a 24-hour basis by skilled nursing 
staff, and/or requires continued intervention by a multidisciplinary 
treatment team; and in addition, at least one of the following criteria 
is determined to be met:
    (A) Patient poses a serious risk of harm to self and/or others.
    (B) Patient is in need of high dosage, intensive medication or 
somatic and/or psychological treatment, with potentially serious side 
effects.
    (C) Patient has acute disturbances of mood, behavior, or thinking.
    (ii) Emergency admissions. Admission to an acute inpatient hospital 
setting may be on an emergency or on a non-emergency basis. In order for 
an admission to qualify as an emergency, the following criteria, in 
addition to those in paragraph (b)(6)(i) of this section, must be met:
    (A) The patient must be at immediate risk of serious harm to self 
and or others based on a psychiatric evaluation performed by a physician 
(or other qualified mental health professional with hospital admission 
authority); and
    (B) The patient requires immediate continuous skilled observation 
and treatment at the acute psychiatric level of care.
    (iii) Preauthorization requirements. (A) With the exception noted in 
paragraph (a)(12)(ii)(E) of this section, all non-emergency admissions 
to an acute inpatient hospital level of care must be authorized prior to 
the admission. The criteria for preauthorization shall be those set 
forth in paragraph (b)(6)(i) of this section. In applying those criteria 
in the context of preauthorization review, special emphasis is placed on 
the development of a specific individualized treatment plan, consistent 
with those criteria and reasonably expected to be effective, for that 
individual patient.
    (B) The timetable for development of the individualized treatment 
plan shall be as follows:
    (1) The development of the plan must begin immediately upon 
admission.
    (2) A preliminary treatment plan must be established within 24 hours 
of the admission.
    (3) A master treatment plan must be established within five calendar 
days of the admission.

[[Page 105]]

    (C) The elements of the individualized treatment plan must include:
    (1) The diagnostic evaluation that establishes the necessity for the 
admission;
    (2) An assessment regarding the inappropriateness of services at a 
less intensive level of care;
    (3) A comprehensive biopsychosocial assessment and diagnostic 
formulation;
    (4) A specific individualized treatment plan that integrates 
measurable goals/objectives and their required level of care for each of 
the patient's problems that are a focus of treatment;
    (5) A specific plan for involvement of family members, unless 
therapeutically contraindicated; and
    (6) A discharge plan, including an objective of referring the 
patient to further services, if needed, at less intensive levels of care 
within the benefit limit period.
    (D) The request for preauthorization must be received by the 
reviewer designated by the Director, OCHAMPUS prior to the planned 
admission. In general, the decision regarding preauthorization shall be 
made within one business day of receipt of a request for 
preauthorization, and shall be followed with written confirmation. In 
the case of an authorization issued after an admission resulting from 
approval of a request made prior to the admission, the effective date of 
the certification shall be the date of the receipt of the request. 
However, if the request on which the approved authorization is based was 
made after the admission (and the case was not an emergency admission), 
the effective date of the authorization shall be the date of approval.
    (E) Authorization prior to admission is not required in the case of 
a psychiatric emergency requiring an inpatient acute level of care, but 
authorization for a continuation of services must be obtained promptly. 
Admissions resulting from a bona fide psychiatric emergency should be 
reported within 24 hours of the admission or the next business day after 
the admission, but must be reported to the Director, OCHAMPUS or a 
designee, within 72 hours of the admission. In the case of an emergency 
admission authorization resulting from approval of a request made within 
72 hours of the admission, the effective date of the authorization shall 
be the date of the admission. However, if it is determined that the case 
was not a bona fide psychiatric emergency admission (but the admission 
can be authorized as medically or psychologically necessary), the 
effective date of the authorization shall be the date of the receipt of 
the request.
    (iv) Concurrent review. Concurrent review of the necessity for 
continued stay will be conducted. The criteria for concurrent review 
shall be those set forth in paragraph (b)(6)(i) of this section. In 
applying those criteria in the context of concurrent review, special 
emphasis is placed on evaluating the progress being made in the active 
clinical treatment being provided and on developing/refining appropriate 
discharge plans. In general, the decision regarding concurrent review 
shall be made within one business day of the review, and shall be 
followed with written confirmation.
    (7) Emergency inpatient hospital services. In the case of a medical 
emergency, benefits can be extended for medically necessary inpatient 
services and supplies provided to a beneficiary by a hospital, including 
hospitals that do not meet CHAMPUS standards or comply with the 
provisions of title VI of the Civil Rights Act, or satisfy other 
conditions herein set forth. In a medical emergency, medically necessary 
inpatient services and supplies are those that are necessary to prevent 
the death or serious impairment of the health of the patient, and that, 
because of the threat to the life or health of the patient, necessitate, 
the use of the most accessible hospital available and equipped to 
furnish such services. The availability of benefits depends upon the 
following three separate findings and continues only as long as the 
emergency exists, as determined by medical review. If the case qualified 
as an emergency at the time of admission to an unauthorized 
institutional provider and the emergency subsequently is determined no 
longer to exist, benefits will be extended up through the date of notice 
to the beneficiary and provider that CHAMPUS benefits no longer are 
payable in that hospital.

[[Page 106]]

    (i) Existence of medical emergency. A determination that a medical 
emergency existed with regard to the patient's condition;
    (ii) Immediate admission required. A determination that the 
condition causing the medical emergency required immediate admission to 
a hospital to provide the emergency care; and
    (iii) Closest hospital utilized. A determination that diagnosis or 
treatment was received at the most accessible (closest) hospital 
available and equipped to furnish the medically necessary care.
    (8) RTC day limit. (i) With respect to mental health services 
provided on or after October 1, 1991, benefits for residential treatment 
are generally limited to 150 days in a fiscal year or 150 days in an 
admission (not including days of care prior to October 1, 1991). The RTC 
benefit limit is separate from the benefit limit for acute inpatient 
mental health care.
    (ii) Waiver of the RTC day limit. (A) There is a statutory 
presumption against the appropriateness of residential treatment 
services in excess of the 150 day limit. However, the Director, 
OCHAMPUS, (or designee) may in special cases, after considering the 
opinion of the peer review designated by the Director (involving a 
health professional who is not a federal employee) confirming that 
applicable criteria have been met, waive the RTC benefit limit in 
paragraph (b)(8)(i) of this section and authorize payment for care 
beyond that limit.
    (B) The criteria for waiver shall be those set forth in paragraph 
(b)(4)(vii) of this section. In applying those criteria to the context 
of waiver request reviews, special emphasis is placed on assuring that 
the record documents that:
    (1) Active treatment has taken place for the past 150 days and 
substantial progress has been made according to the plan of treatment.
    (2) The progress made is insufficient, due to the complexity of the 
illness, for the patient to be discharged to a less intensive level of 
care.
    (3) Specific evidence is presented to explain the factors which 
interfered with treatment progress during the 150 days of RTC care.
    (4) The waiver request includes specific timeframes and a specific 
plan of treatment which will lead to discharge.
    (C) Where family or social issues complicate transfer to a lower 
level of intensity, the RTC is responsible for determining and arranging 
the supportive and adjunctive resources required to permit appropriate 
transfer. If the RTC fails adequately to meet this responsibility, the 
existence of such family or social issues shall be an inadequate basis 
for a waiver of the benefit limit.
    (D) It is the responsibility of the patient's primary care provider 
to establish, through actual documentation from the medical record and 
other sources, that the conditions for waiver exist.
    (iii) RTC day limits do not apply to services provided under the 
Program for Persons with Disabilities (Sec. 199.5) or services provided 
as partial hospitalization care.
    (9) Acute care day limits. (i) With respect to mental health care 
services provided on or after October 1, 1991, payment for inpatient 
acute hospital care is, in general, statutorily limited as follows:
    (A) Adults, aged 19 and over--30 days in a fiscal year or 30 days in 
an admission (excluding days provided prior to October 1, 1991).
    (B) Children and adolescents, aged 18 and under--45 days in a fiscal 
year or 45 days in an admission (excluding days provided prior to 
October 1, 1991).
    (ii) It is the patient's age at the time of admission that 
determines the number of days available.
    (iii) Waiver of the acute care day limits. (A) There is a statutory 
presumption against the appropriateness of inpatient acute services in 
excess of the day limits set forth in paragraph (b)(9)(i) of this 
section. However, the Director, OCHAMPUS (or designee) may in special 
cases, after considering the opinion of the peer review designated by 
the Director (involving a health professional who is not a federal 
employee) confirming that applicable criteria have been met, waive the 
acute inpatient limits described in paragraph (b)(9)(i) of this section 
and authorize payment for care beyond those limits.

[[Page 107]]

    (B) The criteria for waiver of the acute inpatient limit shall be 
those set forth in paragraph (b)(6)(i) of this section. In applying 
those criteria in the context of waiver request review, special emphasis 
is placed on determining whether additional days of acute inpatient 
mental health care are medically/psychologically necessary to complete 
necessary elements of the treatment plan prior to implementing 
appropriate discharge planning. A waiver may also be granted in cases in 
which a patient exhibits well-documented new symptoms, maladaptive 
behavior, or medical complications which have appeared in the inpatient 
setting requiring a significant revision to the treatment plan.
    (C) The clinician responsible for the patient's care is responsible 
for documenting that a waiver criterion has been met and must establish 
an estimated length of stay beyond the date of the inpatient limit. 
There must be evidence of a coherent and specific plan for assessment, 
intervention and reassessment that reasonably can be accomplished within 
the time frame of the additional days of coverage requested under the 
waiver provision.
    (D) For patients in care at the time the inpatient limit is reached, 
a waiver must be requested prior to the limit. For patients being 
readmitted after having received 30 or 45 days in the fiscal year, the 
waiver review will be conducted at the time of the preadmission 
authorization.
    (iv) Acute care day limits do not apply to services provided under 
the Program for Persons with Disabilities (Sec. 199.5) or services 
provided as partial hospitalization care.
    (10) Psychiatric partial hospitalization services.
    (i) In general. Partial hospitalization services are those services 
furnished by a CHAMPUS-authorized partial hospitalization program and 
authorized mental health providers for the active treatment of a mental 
disorder. All services must follow a medical model and vest patient care 
under the general direction of a licensed psychiatrist employed by the 
partial hospitalization center to ensure medication and physical needs 
of all the patients are considered. The primary or attending provider 
must be a CHAMPUS authorized mental health provider, operating within 
the scope of his/her license. These categories include physicians, 
clinical psychologists, certified psychiatric nurse specialists, 
clinical social workers, marriage and family counselors, pastoral 
counselors and mental health counselors. Partial hospitalization 
services are covered as a basic program benefit only if they are 
provided in accordance with paragraph (b)(10) of this section.
    (ii) Criteria for determining medical or psychological necessity of 
psychiatric partial hospitalization services. Psychiatric partial 
hospitalization services will be considered necessary only if all of the 
following conditions are present:
    (A) The patient is suffering significant impairment from a mental 
disorder (as defined in Sec. 199.2) which interferes with age 
appropriate functioning.
    (B) The patient is unable to maintain himself or herself in the 
community, with appropriate support, at a sufficient level of 
functioning to permit an adequate course of therapy exclusively on an 
outpatient basis (but is able, with appropriate support, to maintain a 
basic level of functioning to permit partial hospitalization services 
and presents no substantial imminent risk of harm to self or others).
    (C) The patient is in need of crisis stabilization, treatment of 
partially stabilized mental health disorders, or services as a 
transition from an inpatient program.
    (D) The admission into the partial hospitalization program is based 
on the development of an individualized diagnosis and treatment plan 
expected to be effective for that patient and permit treatment at a less 
intensive level.
    (iii) Preauthorization and concurrent review requirements. All 
preadmission authorization and concurrent review requirements and 
procedures applicable to acute mental health inpatient hospital care in 
paragraphs (a)(12) and (b) of this section are applicable to the partial 
hospitalization program, except that the criteria for considering 
medical or psychological necessity shall be those set forth in paragraph 
(b)(10)(ii) of this section, and no emergency admissions will be 
recognized.

[[Page 108]]

    (iv) Institutional benefits limited to 60 days. Benefits for 
institutional services for partial hospitalization are limited to 60 
treatment days (whether a full day or partial day program) in a fiscal 
year or in an admission. This limit may be extended by waiver.
    (v) Waiver of the 60-day partial hospitalization program limit. The 
Director, OCHAMPUS (or designee) may, in special cases, waive the 60-day 
partial hospitalization benefit and authorize payment for care beyond 
the 60-day limit.
    (A) the criteria for waiver are set forth in paragraph (b)(10)(ii) 
of this section. In applying these criteria in the context of waiver 
request review, special emphasis is placed on determining whether 
additional days of partial hospitalization are medically/psychologically 
necessary to complete essential elements of the treatment plan prior to 
discharge. Consideration is also given in cases in which a patient 
exhibits well-documented new symptoms or maladaptive behaviors which 
have appeared in the partial hospitalization setting requiring 
significant revisions to the treatment plan.
    (B) The clinician responsible for the patient's care is responsible 
for documenting the need for additional days and must establish an 
estimated length of stay beyond the date of the 60-day limit. There must 
be evidence of a coherent and specific plan for assessment, intervention 
and reassessment that reasonably can be accomplished within the time 
frame of the additional days of coverage requested under the waiver 
provisions.
    (C) For patients in care at the time the partial hospitalization 
program limit is reached, a waiver must be requested prior to the limit. 
For patients being preadmitted after having received 60 days in the 
fiscal year, the waiver review will be conducted at the time of the 
preadmission authorization.
    (vi) Services and supplies. The following services and supplies are 
included in the per diem rate approved for an authorized partial 
hospitalization program:
    (A) Board. Includes use of the partial hospital facilities such as 
food service, supervised therapeutically constructed recreational and 
social activities, and other general services as considered appropriate 
by the Director, OCHAMPUS, or a designee.
    (B) Patient assessment. Includes the assessment of each individual 
accepted by the facility, and must, at a minimum, consist of a physical 
examination; psychiatric examination; psychological assessment; 
assessment of physiological, biological and cognitive processes; 
developmental assessment; family history and assessment; social history 
and assessment; educational or vocational history and assessment; 
environmental assessment; and recreational/activities assessment. 
Assessments conducted within 30 days prior to admission to a partial 
program may be used if approved and deemed adequate to permit treatment 
planning by the partial hospital program.
    (C) Psychological testing.
    (D) Treatment services. All services, supplies, equipment and space 
necessary to fulfill the requirements of each patient's individualized 
diagnosis and treatment plan (with the exception of the five 
psychotherapy sessions per week which may be allowed separately for 
individual or family psychotherapy based upon the provisions of 
paragraph (b)(10)(vii) of this section). All mental health services must 
be provided by a CHAMPUS authorized individual professional provider of 
mental health services. [Exception: PHPs that employ individuals with 
master's or doctoral level degrees in a mental health discipline who do 
not meet the licensure, certification and experience requirements for a 
qualified mental health provider but are actively working toward 
licensure or certification, may provide services within the all-
inclusive per diem rate but the individual must work under the clinical 
supervision of a fully qualified mental health provider employed by the 
PHP.]
    (vii) Social services required. The facility must provide an active 
social services component which assures the patient appropriate living 
arrangements after treatment hours, transportation to and from the 
facility, arrangement of community based support services, referral of 
suspected child abuse to the appropriate state agencies, and effective 
after care arrangements, at a minimum.

[[Page 109]]

    (viii) Educational services required. Programs treating children and 
adolescents must ensure the provision of a state certified educational 
component which assures that patients do not fall behind in educational 
placement while receiving partial hospital treatment. CHAMPUS will not 
fund the cost of educational services separately from the per diem rate. 
The hours devoted to education do not count toward the therapeutic half 
or full day program.
    (ix) Family therapy required. The facility must ensure the provision 
of an active family therapy treatment component which assures that each 
patient and family participate at least weekly in family therapy 
provided by the institution and rendered by a CHAMPUS authorized 
individual professional provider of mental health services. There is no 
acceptable substitute for family therapy. An exception to this 
requirement may be granted on a case-by-case basis by the Director, 
OCHAMPUS, or designee, only if family therapy is clinically 
contraindicated.
    (x) Professional mental health benefits limited. Professional mental 
health benefits are limited to a maximum of one session (60 minutes 
individual, 90 minutes family) per authorized treatment day not to 
exceed five sessions in any calendar week. These may be billed 
separately from the partial hospitalization per diem rate only when 
rendered by an attending, CHAMPUS-authorized mental health professional 
who is not an employee of, or under contract with, the partial 
hospitalization program for purposes of providing clinical patient care.
    (xi) Non-mental health related medical services. Separate billing 
will be allowed for otherwise covered, non-mental health related medical 
services.
    (c) Professional services benefit--(1) General. Benefits may be 
extended for those covered services described in paragraph (c) of this 
section that are provided in accordance with good medical practice and 
established standards of quality by physicians or other authorized 
individual professional providers, as set forth in Sec. 199.6 of this 
part. Such benefits are subject to all applicable definitions, 
conditions, exceptions, limitations, or exclusions as maybe otherwise 
set forth in this or other Sections of this part. Except as otherwise 
specifically authorized, to be considered for benefits under paragraph 
(c) of this section, the described services must be rendered by a 
physician, or prescribed, ordered, and referred medically by a physician 
to other authorized individual professional providers. Further, except 
under specifically defined circumstances, there should be an attending 
physician in any episode of care. (For example, certain services of a 
clinical psychologist are exempt from this requirement. For these 
exceptions, refer to Sec. 199.6.)
    (i) Billing practices. To be considered for benefits under paragraph 
(c) of this section, covered professional services must be performed 
personally by the physician or other authorized individual professional 
provider, who is other than a salaried or contractual staff member of a 
hospital or other authorized institution, and who ordinarily and 
customarily bills on a fee-for-service basis for professional services 
rendered. Such billings must be itemized fully and be sufficiently 
descriptive to permit CHAMPUS to determine whether benefits are 
authorized by this part. See paragraph (c)(3)(xiii) of this section for 
the requirements regarding the special circumstances for teaching 
physicians. For continuing professional care, claims should be submitted 
to the appropriate CHAMPUS fiscal intermediary at least every 30 days 
either by the beneficiary or sponsor, or directly by the physician or 
other authorized individual professional provider on behalf of a 
beneficiary (refer to Sec. 199.7).
    (ii) Services must be related. Covered professional services must be 
rendered in connection with and directly related to a covered diagnosis 
or definitive set of symptoms requiring medically necessary treatment.
    (2) Covered services of physicians and other authorized profession 
providers.
    (i) Surgery. Surgery means operative procedures, including related 
preoperative and postoperative care; reduction of fractures and 
dislocations; injection and needling procedures of the joints; laser 
surgery of the eye; and the following procedures:

Bronchoscopy
Laryngoscopy

[[Page 110]]

Thoracoscopy
Catheterization of the heart
Arteriograph thoracic lumbar
Esophagoscopy
Gastroscopy
Proctoscopy
Sigmoidoscopy
Peritoneoscopy
Cystoscopy
Colonscopy
Upper G.I. panendoscopy
Encephalograph
Myelography
Discography
Visualization of intracranial aneurysm by intracarotid injection of dye, 
with exposure of carotid artery, unilateral
Ventriculography
Insufflation of uterus and fallopian tubes for determination of tubal 
patency (Rubin's test of injection of radiopaque medium or for dilation)
Introduction of opaque media into the cranial arterial system, 
preliminary to cerebral arteriography, or into vertebral and subclavian 
systems
Intraspinal introduction of air preliminary to pneumoencephalography
Intraspinal introduction of opaque media preliminary to myelography
Intraventricular introduction of air preliminary to ventriculography

    Note: The Director, OCHAMPUS, or a designee, shall determine such 
additional procedures that may fall within the intent of this definition 
of ``surgery.''

    (ii) Surgical assistance.
    (iii) Inpatient medical services.
    (iv) Outpatient medical services.
    (v) Psychiatric services.
    (vi) Consultation services.
    (vii) Anesthesia services.
    (viii) Radiation therapy services.
    (ix) X-ray services.
    (x) Laboratory and pathological services.
    (xi) Physical medicine services or physiatry services.
    (xii) Maternity care.
    (xiii) Well-child care.
    (xiv) Other medical care. Other medical care includes, but is not 
limited to, hemodialysis, inhalation therapy, shock therapy, and 
chemotherapy. The Director, OCHAMPUS, or a designee, shall determine 
those additional medical services for which benefits may be extended 
under this paragraph.

    Note: A separate professional charge for the oral administration of 
approved antineoplastic drugs is not covered.

    (xv) [Reserved]
    (xvi) Routine eye examinations. Coverage for routine eye 
examinations is limited to dependents of active duty members, to one 
examination per calendar year per person, and to services rendered on or 
after October 1, 1984, except as provided under paragraph (c)(3)(xi) of 
this section.
    (3) Extent of professional benefits--
    (i) Multiple Surgery. In cases of multiple surgical procedures 
performed during the same operative session, benefits shall be extended 
as follows:
    (A) One hundred (100) percent of the CHAMPUS-determined allowable 
charge for the major surgical procedure (the procedure for which the 
greatest amount is payable under the applicable reimbursement method); 
and
    (B) Fifty (50) percent of the CHAMPUS-determined allowable charge 
for each of the other surgical procedures;
    (C) Except that:
    (1) If the multiple surgical procedures involve the fingers or toes, 
benefits for the first surgical procedure shall be at one hundred (100) 
percent of the CHAMPUS-determined allowable charge; the second procedure 
at fifty (50) percent; and the third and subsequent procedures at 
twenty-five (25) percent.
    (2) If the multiple surgical procedures include an incidental 
procedure, no benefits shall be allowed for the incidental procedure.
    (3) If the multiple surgical procedures involve specific procedures 
identified by the Director, OCHAMPUS, benefits shall be limited as set 
forth in CHAMPUS instructions.
    (ii) Different types of inpatient care, concurrent. If a beneficiary 
receives inpatient medical care during the same admission in which he or 
she also receives surgical care or maternity care, the beneficiary shall 
be entitled to the greater of the CHAMPUS-determined allowable charge 
for either the inpatient medical care or surgical or maternity care 
received, as the case may be, but not both; except that the provisions 
of this paragraph (c)(3)(ii) shall not apply if such inpatient medical

[[Page 111]]

care is for a diagnosed condition requiring inpatient medical care not 
related to the condition for which surgical care or maternity care is 
received, and is received from a physician other than the one rendering 
the surgical care or maternity care.

    Note: This provision is not meant to imply that when extra time and 
special effort are required due to postsurgical or postdelivery 
complications, the attending physician may not request special 
consideration for a higher than usual charge.

    (iii) Need for surgical assistance. Surgical assistance is payable 
only when the complexity of the procedure warrants a surgical assistant 
(other than the surgical nurse or other such operating room personnel), 
subject to utilization review. In order for benefits to be extended for 
surgical assistance service, the primary surgeon may be required to 
certify in writing to the nonavailability of a qualified intern, 
resident, or other house physician. When a claim is received for a 
surgical assistant involving the following circumstances, special review 
is required to ascertain whether the surgical assistance service meets 
the medical necessity and other requirements of paragraph (c) of this 
section.
    (A) If the surgical assistance occurred in a hospital that has a 
residency program in a specialty appropriate to the surgery;
    (B) If the surgery was performed by a team of surgeons;
    (C) If there were multiple surgical assistants; or
    (D) If the surgical assistant was a partner of or from the same 
group of practicing physicians as the attending surgeon.
    (iv) Aftercare following surgery. Except for those diagnostic 
procedures classified as surgery in paragraph (c) of this section, and 
injection and needling procedures involving the joints, the benefit 
payments made for surgery (regardless of the setting in which it is 
rendered) include normal aftercare, whether the aftercare is billed for 
by the physician or other authorized individual professional provider on 
a global, all-inclusive basis, or billed for separately.
    (v) Cast and sutures, removal. The benefit payments made for the 
application of a cast or of sutures normally covers the postoperative 
care including the removal of the cast or sutures. When the application 
is made in one geographical location and the removal of the cast or 
sutures must be done in another geographical location, a separate 
benefit payment may be provided for the removal. The intent of this 
provision is to provide a separate benefit only when it is impracticable 
for the beneficiary to use the services of the provider that applied the 
cast originally. Benefits are not available for the services of a second 
provider if those services reasonably could have been rendered by the 
individual professional provider who applied the cast or sutures 
initially.
    (vi) Inpatient care, concurrent. Concurrent inpatient care by more 
than one individual professional provider is covered if required because 
of the severity and complexity of the beneficiary's condition or because 
the beneficiary has multiple conditions that require treatment by 
providers of different specialties. Any claim for concurrent care must 
be reviewed before extending benefits in order to ascertain the 
condition of the beneficiary at the time the concurrent care was 
rendered. In the absence of such determination, benefits are payable 
only for inpatient care rendered by one attending physician or other 
authorized individual professional provider.
    (vii) Consultants who become the attending surgeon. A consultation 
performed within 3 days of surgery by the attending physician is 
considered a preoperative examination. Preoperative examinations are an 
integral part of the surgery and a separate benefit is not payable for 
the consultation. If more than 3 days elapse between the consultation 
and surgery (performed by the same physician), benefits may be extended 
for the consultation, subject to review.
    (viii) Anesthesia administered by the attending physician. A 
separate benefit is not payable for anesthesia administered by the 
attending physician (surgeon or obstetrician) or dentist, or by the 
surgical, obstetrical, or dental assistant.
    (ix) Treatment of mental disorders. CHAMPUS benefits for the 
treatment

[[Page 112]]

of mental disorders are payable for beneficiaries who are outpatients or 
inpatients of CHAMPUS-authorized general or psychiatric hospitals, RTCs, 
or specialized treatment facilities, as authorized by the Director, 
OCHAMPUS, or a designee. All such services are subject to review for 
medical or psychological necessity and for quality of care. The 
Director, OCHAMPUS, reserves the right to require preauthorization of 
mental health services. Preauthorization may be conducted by the 
Director, OCHAMPUS, or a designee. In order to qualify for CHAMPUS 
mental health benefits, the patient must be diagnosed by a CHAMPUS-
authorized licensed, qualified mental health professional to be 
suffering from a mental disorder, according to the criteria listed in 
the most current edition of the Diagnostic and Statistical Manual of 
Mental Disorders which may be purchased from the American Psychiatric 
Press, Inc., 1400 K Street, NW., suite 1101, Washington, DC 20005. 
Benefits are limited for certain mental disorders, such as specific 
developmental disorders. No benefits are payable for ``Conditions Not 
Attributable to a Mental Disorder,'' or V codes. In order for treatment 
of a mental disorder to be medically or psychologically necessary, the 
patient must, as a result of a diagnosed mental disorder, be 
experiencing both physical or psychological distress and an impairment 
in his or her ability to function in appropriate occupational, 
educational or social roles. It is generally the degree to which the 
patient's ability to function is impaired that determines the level of 
care (if any) required to treat the patient's condition.
    (A) Covered diagnostic and therapeutic services. Subject to the 
requirements and limitations stated, CHAMPUS benefits are payable for 
the following services when rendered in the diagnosis or treatment of a 
covered mental disorder by a CHAMPUS-authorized, qualified mental health 
provider practicing within the scope of his or her license. Qualified 
mental health providers are: psychiatrists or other physicians; clinical 
psychologists, certified psychiatric nurse specialists, clinical social 
workers, and certified marriage and family therapists; and pastoral and 
mental health counselors under a physician's supervision. No payment 
will be made for any service listed in paragraph (c)(3)(ix)(A) of this 
section rendered by an individual who does not meet the criteria of 
Sec. 199.6 for his or her respective profession, regardless of whether 
the provider is an independent professional provider or an employee of 
an authorized professional or institutional provider.
    (1) Individual psychotherapy, adult or child. A covered individual 
psychotherapy session is no more than 60 minutes in length. An 
individual psychotherapy session of up to 120 minutes in length is 
payable for crisis intervention.
    (2) Group psychotherapy. A covered group psychotherapy session is no 
more than 90 minutes in length.
    (3) Family or conjoint psychotherapy. A covered family or conjoint 
psychotherapy session is no more than 90 minutes in length. A family or 
conjoint psychotherapy session of up to 180 minutes in length is payable 
for crisis intervention.
    (4) Psychoanalysis. Psychoanalysis is covered when provided by a 
graduate or candidate of a psychoanalytic training institution 
recognized by the American Psychoanalytic Association and when 
preauthorized by the Director, OCHAMPUS, or a designee.
    (5) Psychological testing and assessment. Psychological testing and 
assessment is generally limited to six hours of testing in a fiscal year 
when medically or psychologically necessary and in conjunction with 
otherwise covered psychotherapy. Testing or assessment in excess of 
these limits requires review for medical necessity. Benefits will not be 
provided for the Reitan-Indiana battery when administered to a patient 
under age five, for self-administered tests administered to patients 
under age 13, or for psychological testing and assessment as part of an 
assessment for academic placement.
    (6) Administration of psychotropic drugs. When prescribed by an 
authorized provider qualified by licensure to prescribe drugs.
    (7) Electroconvulsive treatment. When provided in accordance with 
guidelines issued by the Director, OCHAMPUS.

[[Page 113]]

    (8) Collateral visits. Covered collateral visits are those that are 
medically or psychologically necessary for the treatment of the patient 
and, as such, are considered as a psychotherapy session for purposes of 
paragraph (c)(3)(ix)(B) of this section.
    (B) Limitations and review requirements--(1) Outpatient 
psychotherapy. Outpatient psychotherapy generally is limited to a 
maximum of two psychotherapy sessions per week, in any combination of 
individual, family, conjoint, collateral, or group sessions. Before 
benefits can be extended for more than two outpatient psychotherapy 
sessions per week, professional review of the medical or psychological 
necessity for and appropriateness of the more intensive therapy is 
required.
    (2) Inpatient psychotherapy. Coverage of inpatient psychotherapy is 
based on medical or psychological necessity for the services identified 
in the patient's treatment plan. As a general rule, up to five 
psychotherapy sessions per week are considered appropriate when 
specified in the treatment as necessary to meet certain measurable/
observable goals and objectives. Additional sessions per week or more 
than one type of psychotherapy sessions performed on the same day (for 
example, an individual psychotherapy session and a family psychotherapy 
session on the same day) could be considered for coverage, depending on 
the medical or psychological necessity for the services. Benefits for 
inpatient psychotherapy will end automatically when authorization has 
been granted for the maximum number of inpatient mental health days in 
accordance with the limits as described in this section, unless 
additional coverage is granted by the Director, OCHAMPUS or a designee.
    (C) Covered ancillary therapies. Includes art, music, dance, 
occupational, and other ancillary therapies, when included by the 
attending provider in an approved inpatient, residential treatment plan 
and under the clinical supervision of a licensed doctoral level mental 
health professional. These ancillary therapies are not separately 
reimbursed professional services but are included within the 
institutional reimbursement.
    (D) Review of claims for treatment of mental disorder. The Director, 
OCHAMPUS, shall establish and maintain procedures for review, including 
professional review, of the services provided for the treatment of 
mental disorders.
    (x) Physical and occupational therapy. Assessment and treatment 
services of a CHAMPUS-authorized physical or occupational therapist may 
be cost-shared when:
    (A) The services are prescribed and monitored by a physician;
    (B) The purpose of the prescription is to reduce the disabling 
effects of an illness, injury, or neuromuscular disorder; and
    (C) The prescribed treatment increases, stabilizes, or slows the 
deterioration of the beneficiary's ability to perform specified 
purposeful activity in the manner, or within the range considered 
normal, for a human being.
    (xi) Well-child care. Benefits routinely are covered for well-child 
care from birth to under six years of age. These periodic health 
examinations are designed for prevention, early detection and treatment 
of disease and consist of screening procedures, immunizations and risk 
counseling.
    (A) The following services are covered when required as a part of 
the specific well-child care program and when rendered by the attending 
pediatrician, family physician, certified nurse practitioner, or 
certified physician assistant.
    (1) Newborn examination, heredity and metabolic screening, and 
newborn circumcision.
    (2) Periodic health supervision visits, in accordance with American 
Academy of Pediatrics (AAP) guidelines, intended to promote the optimal 
health for infants and children to include the following services:
    (i) History and physical examination and mental health assessment.
    (ii) Vision, hearing, and dental screening.
    (iii) Developmental appraisal to include body measurement.
    (iv) Immunizations as recommenced by the Centers for Disease Control 
(CDC).
    (v) Pediatric risk assessment for lead exposure and blood lead level 
test.

[[Page 114]]

    (vi) Tuberculosis screening.
    (vii) Blood pressure screening.
    (viii) Measurement of hemoglobin and hematocrit for anemia.
    (ix) Urinalysis.
    (x) Health guidance and counseling, including breastfeeding and 
nutrition counseling.
    (B) Additional services or visits required because of specific 
findings or because the particular circumstances of the individual case 
are covered if medically necessary and otherwise authorized for benefits 
under CHAMPUS.
    (C) The Deputy Assistant Secretary of Defense, Health Services 
Financing, will determine when such services are separately reimbursable 
apart from the health supervision visit.
    (xii) [Reserved]
    (xiii) Physicians in a teaching setting.
    (A) Teaching physicians.
    (1) General. The services of teaching physicians may be reimbursed 
on an allowable charge basis only when the teaching physician has 
established an attending physician relationship between the teaching 
physician and the patient or when the teaching physician provides 
distinct, identifiable, personal services (e.g., services rendered as a 
consultant, assistant surgeon, etc.). Attending physician services may 
include both direct patient care services or direct supervision of care 
provided by a physician in training. In order to be considered an 
attending physician, the teaching physician must:
    (i) Review the patient's history and the record of examinations and 
tests in the institution, and make frequent reviews of the patient's 
progress; and
    (ii) Personally examine the patient; and
    (iiii) Confirm or revise the diagnosis and determine the course of 
treatment to be followed; and
    (iv) Either perform the physician's services required by the patient 
or supervise the treatment so as to assure that appropriate services are 
provided by physicians in training and that the care meets a proper 
quality level; and
    (v) Be present and ready to perform any service performed by an 
attending physician in a nonteaching setting when a major surgical 
procedure or a complex or dangerous medical procedure is performed; and
    (vi) Be personally responsible for the patient's care, at least 
throughout the period of hospitalization.
    (2) Direct supervision by an attending physician of care provided by 
physicians in training. Payment on the basis of allowable charges may be 
made for the professional services rendered to a beneficiary by his/her 
attending physician when the attending physician provides personal and 
identifiable direction to physicians in training who are participating 
in the care of the patient. It is not necessary that the attending 
physician be personally present for all services, but the attending 
physician must be on the provider's premises and available to provide 
immediate personal assistance and direction if needed.
    (3) Individual, personal services. A teaching physician may be 
reimbursed on an allowable charge basis for any individual, identifiable 
service rendered to a CHAMPUS beneficiary, so long as the service is a 
covered service and is normally reimbursed separately, and so long as 
the patient records substantiate the service.
    (4) Who may bill. The services of a teaching physician must be 
billed by the institutional provider when the physician is employed by 
the provider or a related entity or under a contract which provides for 
payment to the physician by the provider or a related entity. Where the 
teaching physician has no relationship with the provider (except for 
standard physician privileges to admit patients) and generally treats 
patients on a fee-for-service basis in the private sector, the teaching 
physician may submit claims under his/her own provider number.
    (B) Physicians in training. Physicians in training in an approved 
teaching program are considered to be ``students'' and may not be 
reimbursed directly by CHAMPUS for services rendered to a beneficiary 
when their services are provided as part of their employment (either 
salaried or contractual) by a hospital or other institutional provider. 
Services of physicians in training may be reimbursed on an allowable 
charge basis only if:
    (1) The physician in training is fully licensed to practice medicine 
by the state in which the services are performed, and

[[Page 115]]

    (2) The services are rendered outside the scope and requirements of 
the approved training program to which the physician in training is 
assigned.
    (d) Other benefits--(1) General. Benefits may be extended for the 
allowable charge of those other covered services and supplies described 
in paragraph (d) of this section, which are provided in accordance with 
good medical practice and established standards of quality by those 
other authorized providers described in Sec. 199.6 of this Regulation. 
Such benefits are subject to all applicable definitions, conditions, 
limitations, or exclusions as otherwise may be set forth in this or 
other chapters of this Regulation. To be considered for benefits under 
paragraph (d) of this section, the described services or supplies must 
be prescribed and ordered by a physician. Other authorized individual 
professional providers acting within their scope of licensure may also 
prescribe and order these services and supplies unless otherwise 
specified in paragraph (d) of this section. For example, durable medical 
equipment and cardiorespiratory monitors can only be ordered by a 
physician.
    (2) Billing practices. To be considered for benefits under paragraph 
(d) of this section, covered services and supplies must be provided and 
billed for by an authorized provider as set forth in Sec. 199.6 of this 
part. Such billing must be itemized fully and described sufficiently, 
even when CHAMPUS payment is determined under the CHAMPUS DRG-based 
payment system, so that CHAMPUS can determine whether benefits are 
authorized by this part. Except for claims subject to the CHAMPUS DRG-
based payment system, whenever continuing charges are involved, claims 
should be submitted to the appropriate CHAMPUS fiscal intermediary at 
least every 30 days (monthly) either by the beneficiary or sponsor or 
directly by the provider. For claims subject to the CHAMPUS DRG-based 
payment system, claims may be submitted only after the beneficiary has 
been discharged or transferred from the hospital.
    (3) Other covered services and supplies--(i) Blood. If whole blood 
or plasma (or its derivatives) are provided and billed for by an 
authorized institution in connection with covered treatment, benefits 
are extended as set forth in paragraph (b) of this section. If blood is 
billed for directly to a beneficiary, benefits may be extended under 
paragraph (d) in the same manner as a medical supply.
    (ii) Durable medical equipment--(A) Scope of benefit. (1) Subject to 
the exceptions in paragraphs (d)(3)(ii)(B) and (d)(3)(ii)(C) of this 
section, only durable medical equipment (DME) which is ordered by a 
physician for the specific use of the beneficiary shall be covered.
    (2) In addition, any customization of durable medical equipment 
owned by the patient is authorized to be provided to the patient and any 
accessory or item of supply for any such authorized durable medical 
equipment, may be provided to the patient if the customization, 
accessory, or item of supply is essential for--
    (i) Achieving therapeutic benefit for the patient
    (ii) Making the equipment serviceable; or
    (iii) Otherwise assuring the proper functioning of the equipment.
    (3) Further, equipment as defined in Sec. 199.2 of this part and 
which:
    (i) Is medically necessary for the treatment of a covered illness or 
injury;
    (ii) Improves, restores, or maintains the function of a malformed, 
diseased, or injured body part, or can otherwise minimize or prevent the 
deterioration of the patient's function or condition;
    (iii) Can maximize the patient's function consistent with the 
patient's physiological or medical needs;
    (iv) Provides the medically appropriate level of performance and 
quality for the medical condition present (that is, nonluxury or 
nondeluxe);
    (v) Is not otherwise excluded by this Regulation.
    (B) Cardiorespiratory monitor exception. (1) When prescribed by a 
physician who is otherwise eligible as a CHAMPUS individual professional 
provider, or who is on active duty with a United States Uniformed 
Service, an electronic cardiorespiratory monitor, including technical 
support necessary for the proper use of the monitor, may be cost-shared 
as durable medical

[[Page 116]]

equipment when supervised by the prescribing physician for in-home use 
by:
    (i) An infant beneficiary who has had an apparent life-threatening 
event, as defined in guidelines issued by the Director, OCHAMPUS, or a 
designee, or
    (ii) An infant beneficiary who is a subsequent or multiple birth 
biological sibling of a victim of sudden infant death syndrome (SIDS), 
or
    (iii) An infant beneficiary whose birth weight was 1,500 grams or 
less, or
    (iv) An infant beneficiary who is a pre-term infant with pathologic 
apnea, as defined in guidelines issued by the Director, OCHAMPUS, or a 
designee, or
    (v) Any beneficiary who has a condition or suspected condition 
designated in guidelines issued by the Director, OCHAMPUS, or a 
designee, for which the in-home use of the cardiorespiratory monitor 
otherwise meets Basic Program requirements.
    (2) The following types of services and items may be cost-shared 
when provided in conjunction with an otherwise authorized 
cardiorespiratory monitor:
    (i) Trend-event recorder, including technical support necessary for 
the proper use of the recorder.
    (ii) Analysis of recorded physiological data associated with monitor 
alarms.
    (iii) Professional visits for services otherwise authorized by this 
part, and for family training on how to respond to an apparent life 
threatening event.
    (iv) Diagnostic testing otherwise authorized by this part.
    (C) Basic mobility equipment exception. A wheelchair, or a CHAMPUS-
approved alternative, which is medically necessary to provide basic 
mobility, including reasonable additional cost for medically necessary 
modifications to accommodate a particular disability, may be cost-shared 
as durable medical equipment.
    (D) Exclusions. DME which is otherwise qualified as a benefit is 
excluded as a benefit under the following circumstances:
    (1) DME for a beneficiary who is a patient in a type of facility 
that ordinarily provides the same type of DME item to its patients at no 
additional charge in the usual course of providing its services.
    (2) DME which is available to the beneficiary from a Uniformed 
Services Medical Treatment Facility.
    (3) DME with deluxe, luxury, or immaterial features which increase 
the cost of the item to the government relative to a similar item 
without those features.
    (E) Basis for reimbursement. The cost of DME may be shared by the 
CHAMPUS based upon the price which is most advantageous to the 
government taking into consideration the anticipated duration of the 
medically necessary need for the equipment and current price information 
for the type of item. The cost analysis must include comparison of the 
total price of the item as a monthly rental charge, a lease-purchase 
price, and a lump-sum purchase price and a provision for the time value 
of money at the rate determined by the U.S. Department of the Treasury.
    (iii) Medical supplies and dressings (consumables). Medical supplies 
and dressings (consumables) are those that do not withstand prolonged, 
repeated use. Such items must be related directly to an appropriate and 
verified covered medical condition of the specific beneficiary for whom 
the item was purchased and obtained from a medical supply company, a 
pharmacy, or authorized institutional provider. Examples of covered 
medical supplies and dressings are disposable syringes for a known 
diabetic, colostomy sets, irrigation sets, and elastic bandages. An 
external surgical garment specifically designed for use following a 
mastectomy is considered a medical supply item.
    Note: Generally, the allowable charge of a medical supply item will 
be under $100. Any item over this amount must be reviewed to determine 
whether it would not qualify as a DME item. If it is, in fact, a medical 
supply item and does not represent an excessive charge, it can be 
considered for benefits under paragraph (d)(3)(iii) of this section.
    (iv) Oxygen. Oxygen and equipment for its administration are 
covered. Benefits are limited to providing a tank unit at one location 
with oxygen limited to a 30-day supply at any one time. Repair and 
adjustment of CHAMPUS-purchased oxygen equipment also is covered.

[[Page 117]]

    (v) Ambulance. Civilian ambulance service is covered when medically 
necessary in connection with otherwise covered services and supplies and 
a covered medical condition. For the purpose of TRICARE payment, 
ambulance service is an outpatient service (including in connection with 
maternity care) with the exception of otherwise covered transfers 
between hospitals which are cost-shared on an inpatient basis. Ambulance 
transfers from a hospital based emergency room to another hospital more 
capable of providing the required care will also be cost-shared on an 
inpatient basis.
    Note: The inpatient cost-sharing provisions for ambulance transfers 
only apply to otherwise covered transfers between hospitals, i.e., acute 
care, general, and special hospitals; psychiatric hospitals; and long-
term hospitals.
    (A) Ambulance service cannot be used instead of taxi service and is 
not payable when the patient's condition would have permitted use of 
regular private transportation; nor is it payable when transport or 
transfer of a patient is primarily for the purpose of having the patient 
nearer to home, family, friends, or personal physician. Except as 
described in paragraph (d)(3)(v)(C)(1) of this section transport must be 
to the closest appropriate facility by the least costly means.
    (B) Vehicles such as medicabs or ambicabs function primarily as 
public passenger conveyances transporting patients to and from their 
medical appointments. No actual medical care is provided to the patients 
in transit. These types of vehicles do not qualify for benefits for the 
purpose of CHAMPUS payment.
    (C) Except as described in paragraph (d)(3)(v)(C)(1)(1) of this 
section, ambulance services by other than land vehicles (such as a boat 
or airplane) may be considered only when the pickup point is 
inaccessible by a land vehicle, or when great distance or other 
obstacles are involved in transporting the patient to the nearest 
hospital with appropriate facilities and the patient's medical condition 
warrants speedy admission or is such that transfer by other means is 
contraindicated.
    (1) Advanced life support air ambulance and certified advanced life 
support attendant are covered services for solid organ and stem cell 
transplant candidates.
    (2) Advanced life support air ambulance and certified advanced life 
support attendant shall be reimbursed subject to standard reimbursement 
methodologies.
    (vi) Prescription drugs and medicines. Prescription drugs and 
medicines that by United States law require a physician's or other 
authorized individual professional provider's prescription (acting 
within the scope of their license) and that are ordered or prescribed by 
a physician or other authorized individual professional provider (except 
that insulin is covered for a known diabetic, even though a prescription 
may not be required for its purchase) in connection with an otherwise 
covered condition or treatment, including Rh immune globulin.
    (A) Drugs administered by a physician or other authorized individual 
professional provider as an integral part of a procedure covered under 
paragraph (b) or (c) of this section (such as chemotherapy) are not 
covered under this subparagraph inasmuch as the benefit for the 
institutional services or the professional services in connection with 
the procedure itself also includes the drug used.
    (B) CHAMPUS benefits may not be extended for drugs not approved by 
the U.S. Food and Drug Administration for commercial marketing. Drugs 
grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 may be 
covered under CHAMPUS as if FDA approved.
    (vii) Prosthetics, prosthetic devices, and prosthetic supplies, as 
determined by the Secretary of Defense to be necessary because of 
significant conditions resulting from trauma, congenital anomalies, or 
disease. Additionally, the following are covered:
    (A) Any accessory or item of supply that is used in conjunction with 
the device for the purpose of achieving therapeutic benefit and proper 
functioning;
    (B) Services necessary to train the recipient of the device in the 
use of the device;
    (C) Repair of the device for normal wear and tear or damage;
    (D) Replacement of the device if the device is lost or irreparably 
damaged

[[Page 118]]

or the cost of repair would exceed 60 percent of the cost of 
replacement.
    (viii) Orthopedic braces and appliances. The purchase of leg braces 
(including attached shoes), arm braces, back braces, and neck braces is 
covered, orthopedic shoes, arch supports, shoe inserts, and other 
supportive devices for the feet, including special-ordered, custom-made 
built-up shoes or regular shoes subsequently built up, are not covered.
    (e) Special benefit information--(1) General. There are certain 
circumstances, conditions, or limitations that impact the extension of 
benefits and that require special emphasis and explanation. This 
paragraph (e) sets forth those benefits and limitations recognized to be 
in this category. The benefits and limitations herein described also are 
subject to all applicable definitions, conditions, limitations, 
exceptions, and exclusions as set forth in this or other sections of 
this part, except as otherwise may be provided specifically in this 
paragraph (e).
    (2) Abortion. The statute under which CHAMPUS operates prohibits 
payment for abortions with one single exception--where the life of the 
mother would be endangered if the fetus were carried to term. Covered 
abortion services are limited to medical services and supplies only. 
Physician certification is required attesting that the abortion was 
performed because the mother's life would be endangered if the fetus 
were carried to term. Abortions performed for suspected or confirmed 
fetal abnormality (e.g., anencephalic) or for mental health reasons 
(e.g., threatened suicide) do not fall within the exceptions permitted 
within the language of the statute and are not authorized for payment 
under CHAMPUS.
    Note: Covered abortion services are limited to medical services or 
supplies only for the single circumstance outlined above and do not 
include abortion counseling or referral fees. Payment is not allowed for 
any services involving preparation for, or normal followup to, a 
noncovered abortion. The Director, OCHAMPUS, or a designee, shall issue 
guidelines describing the policy on abortion.
    (3) Family planning. The scope of the CHAMPUS family planning 
benefit is as follows:
    (i) Birth control (such as contraception)--(A) Benefits provided. 
Benefits are available for services and supplies related to preventing 
conception, including the following:
    (1) Surgical inserting, removal, or replacement of intrauterine 
devices.
    (2) Measurement for, and purchase of, contraceptive diaphragms (and 
later remeasurement and replacement).
    (3) Prescription contraceptives.
    (4) Surgical sterilization (either male or female).
    (B) Exclusions. The family planning benefit does not include the 
following:
    (1) Prophylactics (condoms).
    (2) Spermicidal foams, jellies, and sprays not requiring a 
prescription.
    (3) Services and supplies related to noncoital reproductive 
technologies, including but not limited to artificial insemination 
(including any costs related to donors or semen banks), in-vitro 
fertilization and gamete intrafallopian transfer.
    (4) Reversal of a surgical sterilization procedure (male or female).
    (ii) Genetic testing. Genetic testing essentially is preventive 
rather than related to active medical treatment of an illness or injury. 
However, under the family planning benefit, genetic testing is covered 
when performed in certain high risk situations. For the purpose of 
CHAMPUS, genetic testing includes to detect developmental abnormalities 
as well as purely genetic defects.
    (A) Benefits provided. Benefits may be extended for genetic testing 
performed on a pregnant beneficiary under the following prescribed 
circumstances. The tests must be appropriate to the specific risk 
situation and must meet one of the following criteria:
    (1) The mother-to-be is 35 years old or older; or
    (2) The mother- or father-to-be has had a previous child born with a 
congenital abnormality; or
    (3) Either the mother- or father-to-be has a family history of 
congenital abnormalities; or
    (4) The mother-to-be contracted rubella during the first trimester 
of the pregnancy; or
    (5) Such other specific situations as may be determined by the 
Director, OCHAMPUS, or a designee, to fall

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within the intent of paragraph (e)(3)(ii) of this section.
    (B) Exclusions. It is emphasized that routine or demand genetic 
testing is not covered. Further, genetic testing does not include the 
following:
    (1) Tests performed to establish paternity of a child.
    (2) Tests to determine the sex of an unborn child.
    (4) Treatment of substance use disorders. Emergency and inpatient 
hospital care for complications of alcohol and drug abuse or dependency 
and detoxification are covered as for any other medical condition. 
Specific coverage for the treatment of substance use disorders includes 
detoxification, rehabilitation, and outpatient care provided in 
authorized substance use disorder rehabilitation facilities.
    (i) Emergency and inpatient hospital services. Emergency and 
inpatient hospital services are covered when medically necessary for the 
active medical treatment of the acute phases of substance abuse 
withdrawal (detoxification), for stabilization, and for treatment of 
medical complications of substance use disorders. Emergency and 
inpatient hospital services are considered medically necessary only when 
the patient's condition is such that the personnel and facilities of a 
hospital are required. Stays provided for substance use disorder 
rehabilitation in a hospital-based rehabilitation facility are covered, 
subject to the provisions of paragraph (e)(4)(ii) of this section. 
Inpatient hospital services also are subject to the provisions regarding 
the limit on inpatient mental health services.
    (ii) Authorized substance use disorder treatment. Only those 
services provided by CHAMPUS-authorized institutional providers are 
covered. Such a provider must be either an authorized hospital, or an 
organized substance use disorder treatment program in an authorized 
free-standing or hospital-based substance use disorder rehabilitation 
facility. Covered services consist of any or all of the services listed 
below. A qualified mental health provider (physicians, clinical 
psychologists, clinical social workers, psychiatric nurse specialists) 
(see paragraph (c)(3)(ix) of this section) shall prescribe the 
particular level of treatment. Each CHAMPUS beneficiary is entitled to 
three substance use disorder treatment benefit periods in his or her 
lifetime, unless this limit is waived pursuant to paragraph (e)(4)(v) of 
this section. (A benefit period begins with the first date of covered 
treatment and ends 365 days later, regardless of the total services 
actually used within the benefit period. Unused benefits cannot be 
carried over to subsequent benefit periods. Emergency and inpatient 
hospital services (as described in paragraph (e)(4)(i) of this section) 
do not constitute substance abuse treatment for purposes of establishing 
the beginning of a benefit period.)
    (A) Rehabilitative care. Rehabilitative care in a authorized 
hospital or substance use disorder rehabilitative facility, whether 
free-standing or hospital-based, is covered on either a residential or 
partial care (day or night program) basis. Coverage during a single 
benefit period is limited to no more than inpatient stay (exclusive of 
stays classified in DRG 433) in hospitals subject to CHAMPUS DRG-based 
payment system or 21 days in a DRG-exempt facility for rehabilitation 
care, unless the limit is waived pursuant to paragraph (e)(4)(v) of this 
section. If the patient is medically in need of chemical detoxification, 
but does not require the personnel or facilities of a general hospital 
setting, detoxification services are covered in addition to the 
rehabilitative care, but in a DRG-exempt facility detoxification 
services are limited to 7 days unless the limit is waived pursuant to 
paragraph (e)(4)(v) of this section. The medical necessity for the 
detoxification must be documented. Any detoxification services provided 
by the substance use disorder rehabilitation facility must be under 
general medical supervision.
    (B) Outpatient care. Outpatient treatment provided by an approved 
substance use disorder rehabilitation facility, whether free-standing or 
hospital-based, is covered for up to 60 visits in a benefit period, 
unless the limit is waived pursuant to paragraph (e)(4)(v) of this 
section.
    (C) Family therapy. Family therapy provided by an approved substance 
use

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disorder rehabilitation facility, whether free-standing or hospital-
based, is covered for up to 15 visits in a benefit period, unless the 
limit is waived pursuant to paragraph (e)(4)(v) of this section.
    (iii) Exclusions--(A) Aversion therapy. The programmed use of 
physical measures, such as electric shock, alcohol, or other drugs as 
negative reinforcement (aversion therapy) is not covered, even if 
recommended by a physician.
    (B) Domiciliary settings. Domiciliary facilities, generally referred 
to as halfway or quarterway houses, are not authorized providers and 
charges for services provided by these facilities are not covered.
    (iv) Confidentiality. Release of any patient identifying 
information, including that required to adjudicate a claim, must comply 
with the provisions of section 544 of the Public Health Service Act, as 
amended, (42 U.S.C. 290dd-3), which governs the release of medical and 
other information from the records of patients undergoing treatment of 
substance abuse. If the patient refuses to authorize the release of 
medical records which are, in the opinion of the Director, OCHAMPUS, or 
a designee, necessary to determine benefits on a claim for treatment of 
substance abuse the claim will be denied.
    (v) Waiver of benefit limits. The specific benefit limits set forth 
in paragraphs (e)(4)(ii) of this section may be waived by the Director, 
OCHAMPUS in special cases based on a determination that all of the 
following criteria are met:
    (A) Active treatment has taken place during the period of the 
benefit limit and substantial progress has been made according to the 
plan of treatment.
    (B) Further progress has been delayed due to the complexity of the 
illness.
    (C) Specific evidence has been presented to explain the factors that 
interfered with further treatment progress during the period of the 
benefit limit.
    (D) The waiver request includes specific time frames and a specific 
plan of treatment which will complete the course of treatment.
    (5) Transplants. (i) Organ transplants. Basic Program benefits are 
available for otherwise covered services or supplies in connection with 
an organ transplant procedure, provided such transplant procedure is in 
accordance with accepted professional medical standards and is not 
considered unproven.
    (A) General. (1) Benefits may be allowed for medically necessary 
services and supplies related to an organ transplant for:
    (i) Evaluation of potential candidate's suitability for an organ 
transplant, whether or not the patient is ultimately accepted as a 
candidate for transplant.
    (ii) Pre- and post-transplant inpatient hospital and outpatient 
services.
    (iii) Pre- and post-operative services of the transplant team.
    (iv) Blood and blood products.
    (v) FDA approved immunosuppression drugs to include off-label uses 
when determined to be medically necessary for the treatment of the 
condition for which it is administered, according to accepted standards 
of medical practice.
    (vi) Complications of the transplant procedure, including inpatient 
care, management of infection and rejection episodes.
    (vii) Periodic evaluation and assessment of the successfully 
transplanted patient.
    (viii) The donor acquisition team, including the costs of 
transportation to the location of the donor organ and transportation of 
the team and the donated organ to the location of the transplant center.
    (ix) The maintenance of the viability of the donor organ after all 
existing legal requirements for excision of the donor organ have been 
met.
    (2) TRICARE benefits are payable for recipient costs when the 
recipient of the transplant is a CHAMPUS beneficiary, whether or not the 
donor is a CHAMPUS beneficiary.
    (3) Donor costs are payable when:
    (i) Both the donor and recipient are CHAMPUS beneficiaries.
    (ii) The donor is a CHAMPUS beneficiary but the recipient is not.
    (iii) The donor is the sponsor and the recipient is a CHAMPUS 
beneficiary. (In such an event, donor costs are paid

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as a part of the beneficiary and recipient costs.)
    (iv) The donor is neither a CHAMPUS beneficiary nor a sponsor, if 
the recipient is a CHAMPUS beneficiary. (Again, in such an event, donor 
costs are paid as a part of the beneficiary and recipient costs.)
    (4) If the donor is not a CHAMPUS beneficiary, TRICARE benefits for 
donor costs are limited to those directly related to the transplant 
procedure itself and do not include any medical care costs related to 
other treatment of the donor, including complications.
    (5) TRICARE benefits will not be allowed for transportation of an 
organ donor.
    (B) [Reserved]
    (ii) Stem cell transplants. TRICARE benefits are payable for 
beneficiaries whose conditions are considered appropriate for stem cell 
transplant according to guidelines adopted by the Executive Director, 
TMA, or a designee.
    (6) Eyeglasses, spectacles, contact lenses, or other optical 
devices. Eyeglasses, spectacles, contact lenses, or other optical 
devices are excluded under the Basic Program except under very limited 
and specific circumstances.
    (i) Exception to general exclusion. Benefits for glasses and lenses 
may be extended only in connection with the following specified eye 
conditions and circumstances:
    (A) Eyeglasses or lenses that perform the function of the human 
lens, lost as a result of intraocular surgery or ocular injury or 
congenital absence.
    Note: Notwithstanding the general requirement for U.S. Food and Drug 
Administration approval of any surgical implant set forth in paragraph 
(d)(3)(vii) of this section, intraocular lenses are authorized under 
CHAMPUS if they are either approved for marketing by FDA or are subject 
to an investigational device exemption.
    (B) ``Pinhole'' glasses prescribed for use after surgery for 
detached retina.
    (C) Lenses prescribed as ``treatment'' instead of surgery for the 
following conditions:
    (1) Contract lenses used for treatment of infantile glaucoma.
    (2) Corneal or scleral lenses prescribed in connection with 
treatment of keratoconus.
    (3) Scleral lenses prescribed to retain moisture when normal tearing 
is not present or is inadequate.
    (4) Corneal or scleral lenses prescribed to reduce a corneal 
irregularity other than astigmatism.
    (ii) Limitations. The specified benefits are limited further to one 
set of lenses related to one of the qualifying eye conditions set forth 
in paragraph (e)(6)(i) of this section. If there is a prescription 
change requiring a new set of lenses (but still related to the 
qualifying eye condition), benefits may be extended for a second set of 
lenses, subject to specific medical review.
    (7) Transsexualism or such other conditions as gender dysphoria. All 
services and supplies directly or indirectly related to transsexualism 
or such other conditions as gender dysphoria are excluded under CHAMPUS. 
This exclusion includes, but is not limited to, psychotherapy, 
prescription drugs, and intersex surgery that may be provided in 
connection with transsexualism or such other conditions as gender 
dysphoria. There is only one very limited exception to this general 
exclusion, that is, notwithstanding the definition of congenital 
anomaly, CHAMPUS benefits may be extended for surgery and related 
medically necessary services performed to correct sex gender confusion 
(that is, ambiguous genitalia) which has been documented to be present 
at birth.
    (8) Cosmetic, reconstructive, or plastic surgery. For the purposes 
of CHAMPUS, cosmetic, reconstructive, or plastic surgery is surgery that 
can be expected primarily to improve physical appearance or that is 
performed primarily for psychological purposes or that restores form, 
but does not correct or improve materially a bodily function.
    Note: If a surgical procedure primarily restores function, whether 
or not there is also a concomitant improvement in physical appearance, 
the surgical procedure does not fall within the provisions set forth in 
this paragraph (e)(8).
    (i) Limited benefits under CHAMPUS. Benefits under the Basic Program 
generally are not available for cosmetic, reconstructive, or plastic 
surgery.

[[Page 122]]

However, under certain limited circumstances, benefits for otherwise 
covered services and supplies may be provided in connection with 
cosmetic, reconstructive, or plastic surgery as follows:
    (A) Correction of a congenital anomaly; or
    (B) Restoration of body form following an accidental injury; or
    (C) Revision of disfiguring and extensive scars resulting from 
neoplastic surgery.
    (D) Reconstructive breast surgery following a medically necessary 
mastectomy performed for the treatment of carcinoma, severe fibrocystic 
disease, other nonmalignant tumors or traumatic injuries.
    (E) Penile implants and testicular prostheses for conditions 
resulting from organic origins (i.e., trauma, radical surgery, disease 
process, for correction of congenital anomaly, etc.). Also, penile 
implants for organic impotency.
    Note: Organic impotence is defined as that which can be reasonably 
expected to occur following certain diseases, surgical procedures, 
trauma, injury, or congenital malformation. Impotence does not become 
organic because of psychological or psychiatric reasons.
    (F) Generally, benefits are limited to those cosmetic, 
reconstructive, or plastic surgery procedures performed no later than 
December 31 of the year following the year in which the related 
accidental injury or surgical trauma occurred, except for authorized 
postmastectomy breast reconstruction for which there is no time 
limitation between mastectomy and reconstruction. Also, special 
consideration for exception will be given to cases involving children 
who may require a growth period.
    (ii) General exclusions. (A) For the purposes of CHAMPUS, dental 
congenital anomalies such as absent tooth buds or malocclusion 
specifically are excluded. Also excluded are any procedures related to 
transsexualism or such other conditions as gender dysphoria, except as 
provided in paragraph (e)(7) of this section.
    (B) Cosmetic, reconstructive, or plastic surgery procedures 
performed primarily for psychological reasons or as a result of the 
aging process also are excluded.
    (C) Procedures performed for elective correction of minor 
dermatological blemishes and marks or minor anatomical anomalies also 
are excluded.
    (iii) Noncovered surgery, all related services and supplies 
excluded. When it is determined that a cosmetic, reconstructive, or 
plastic surgery procedure does not qualify for CHAMPUS benefits, all 
related services and supplies are excluded, including any institutional 
costs.
    (iv) Example of noncovered cosmetic, reconstructive, or plastic 
surgery procedures. The following is a partial list of cosmetic, 
reconstructive, or plastic surgery procedures that do not qualify for 
benefits under CHAMPUS. This list is for example purposes only and is 
not to be construed as being all-inclusive.
    (A) Any procedure performed for personal reasons to improve the 
appearance of an obvious feature or part of the body that would be 
considered by an average observer to be normal and acceptable for the 
patient's age or ethnic or racial background.
    (B) Cosmetic, reconstructive, or plastic surgical procedures that 
are justified primarily on the basis of a psychological or psychiatric 
need.
    (C) Augmentation mammoplasties. Augmentation mammoplasties, except 
for breast reconstruction following a covered mastectomy and those 
specifically authorized in paragraph (e)(8)(i) of this section.
    (D) Face lifts and other procedures related to the aging process.
    (E) Reduction mammoplasties. Reduction mammoplasties (unless there 
is medical documentation of intractable pain, not amenable to other 
forms of treatment, resulting from large, pendulous breasts or unless 
performed as an integral part of an authorized breast reconstruction 
procedure under paragraph (e)(8)(i) of this section, including reduction 
of the collateral breast for purposes of ensuring breast symmetry)
    (F) Panniculectomy; body sculpture procedures.
    (G) Repair of sagging eyelids (without demonstrated and medically 
documented significant impairment of vision).

[[Page 123]]

    (H) Rhinoplasties (without evidence of accidental injury occurring 
within the previous 6 months that resulted in significant obstruction of 
breathing).
    (I) Chemical peeling for facial wrinkles.
    (J) Dermabrasion of the face.
    (K) Elective correction of minor dermatological blemishes and marks 
or minor anatomical anomalies.
    (L) Revision of scars resulting from surgery or a disease process, 
except disfiguring and extensive scars resulting from neoplastic 
surgery.
    (M) Removal of tattoos.
    (N) Hair transplants.
    (O) Electrolysis.
    (P) Any procedures related to transsexualism or such other 
conditions as gender dysphoria except as provided in paragraph (e)(7) of 
this section.
    (Q) Penile implant procedure for psychological impotency, 
transsexualism, or such other conditions as gender dysphoria.
    (R) Insertion of prosthetic testicles for transsexualism, or such 
other conditions as gender dysphoria.
    (9) Complications (unfortunate sequelae) resulting from noncovered 
initial surgery or treatment. Benefits are available for otherwise 
covered services and supplies required in the treatment of complications 
resulting from a noncovered incident of treatment (such as nonadjunctive 
dental care, transsexual surgery, and cosmetic surgery) but only if the 
later complication represents a separate medical condition such as a 
systemic infection, cardiac arrest, and acute drug reaction. Benefits 
may not be extended for any later care or procedures related to the 
complication that essentially is similar to the initial noncovered care. 
Examples of complications similar to the initial episode of care (and 
thus not covered) would be repair of facial scarring resulting from 
dermabrasion for acne or repair of a prolapsed vagina in a biological 
male who had undergone transsexual surgery.
    (10) Dental. CHAMPUS does not include a dental benefit. Under very 
limited circumstances, benefits are available for dental services and 
supplies when the dental services are adjunctive to otherwise covered 
medical treatment.
    (i) Adjunctive dental care: Limited. Adjunctive dental care is 
limited to those services and supplies provided under the following 
conditions:
    (A) Dental care which is medically necessary in the treatment of an 
otherwise covered medical (not dental) condition, is an integral part of 
the treatment of such medical condition and is essential to the control 
of the primary medical condition. The following is a list of conditions 
for which CHAMPUS benefits are payable under this provision:
    (1) Intraoral abscesses which extend beyond the dental alveolus.
    (2) Extraoral abscesses.
    (3) Cellulitis and osteitis which is clearly exacerbating and 
directly affecting a medical condition currently under treatment.
    (4) Removal of teeth and tooth fragments in order to treat and 
repair facial trauma resulting from an accidental injury.
    (5) Myofacial Pain Dysfunction Syndrome.
    (6) Total or complete ankyloglossia.
    (7) Adjunctive dental and orthodontic support for cleft palate.
    (8) The prosthetic replacement of either the maxilla or the mandible 
due to the reduction of body tissues associated with traumatic injury 
(e.g., impact, gun shot wound), in addition to services related to 
treating neoplasms or iatrogenic dental trauma.
    Note: The test of whether dental trauma is covered is whether the 
trauma is solely dental trauma. Dental trauma, in order to be covered, 
must be related to, and an integral part of medical trauma; or a result 
of medically necessary treatment of an injury or disease.
    (B) Dental care required in preparation for medical treatment of a 
disease or disorder or required as the result of dental trauma caused by 
the medically necessary treatment of an injury or disease (iatrogenic).
    (1) Necessary dental care including prophylaxis and extractions when 
performed in preparation for or as a result of in-line radiation therapy 
for oral or facial cancer.
    (2) Treatment of gingival hyperplasia, with or without periodontal 
disease, as a direct result of

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prolonged therapy with Dilantin (diphenylhydantoin) or related 
compounds.
    (C) Dental care is limited to the above and similar conditions 
specifically prescribed by the Director, OCHAMPUS, as meeting the 
requirements for coverage under the provisions of this section.
    (ii) General exclusions. (A) Dental care which is routine, 
preventative, restorative, prosthodontic, periodontic or emergency does 
not qualify as adjunctive dental care for the purposes of CHAMPUS except 
when performed in preparation for or as a result of dental trauma caused 
by medically necessary treatment of an injury or disease.
    (B) The adding or modifying of bridgework and dentures.
    (C) Orthodontia, except when directly related to and an integral 
part of the medical or surgical correction of a cleft palate or when 
required in preparation for, or as a result of, trauma to the teeth and 
supporting structures caused by medically necessary treatment of an 
injury or disease.
    (iii) Preauthorization required. In order to be covered, adjunctive 
dental care requires preauthorization from the Director, OCHAMPUS, or a 
designee, in accordance with paragraph (a)(11) of this section. When 
adjunctive dental care involves a medical (not dental) emergency (such 
as facial injuries resulting from an accident), the requirement for 
preauthorization is waived. Such waiver, however, is limited to the 
essential adjunctive dental care related to the medical condition 
requiring the immediate emergency treatment. A complete explanation, 
with supporting medical documentation, must be submitted with claims for 
emergency adjunctive dental care.
    (iv) Covered oral surgery. Notwithstanding the above limitations on 
dental care, there are certain oral surgical procedures that are 
performed by both physicians and dentists, and that are essentially 
medical rather than dental care. For the purposes of CHAMPUS, the 
following procedures, whether performed by a physician or dentist, are 
considered to be in this category and benefits may be extended for 
otherwise covered services and supplies without preauthorization:
    (A) Excision of tumors and cysts of the jaws, cheeks, lips, tongue, 
and roof and floor of the mouth, when such conditions require a 
pathological (histological) examination.
    (B) Surgical procedures required to correct accidental injuries of 
the jaws, cheeks, lips, tongue, and roof and floor of the mouth.
    (C) Treatment of oral or facial cancer.
    (D) Treatment of fractures of facial bones.
    (E) External (extra-oral) incision and drainage of cellulitis.
    (F) Surgery of accessory sinuses, salivary glands, or ducts.
    (G) Reduction of dislocations and the excision of the 
temporomandibular joints, when surgery is a necessary part of the 
reduction.
    (H) Any oral surgical procedure that falls within the cosmetic, 
reconstructive, or plastic surgery definition is subject to the 
limitations and requirements set forth in paragraph (e)(8) of this 
section.
    Note: Extraction of unerupted or partially erupted, malposed or 
impacted teeth, with or without the attached follicular or development 
tissues, is not a covered oral surgery procedure except when the care is 
indicated in preparation for medical treatment of a disease or disorder 
or required as a result of dental trauma caused by the necessary medical 
treatment of an injury or illness. Surgical preparation of the mouth for 
dentures is not covered by CHAMPUS.
    (v) Inpatient hospital stay in connection with non-adjunctive, 
noncovered dental care. Institutional benefits specified in paragraph 
(b) of this section may be extended for inpatient hospital stays related 
to noncovered, nonadjunctive dental care when such inpatient stay is 
medically necessary to safeguard the life of the patient from the 
effects of dentistry because of the existence of a specific and serious 
nondental organic impairment currently under active treatment. 
(Hemophilia is an example of a condition that could be considered a 
serious nondental impairment.) Preauthorization by the Director, 
OCHAMPUS, or a designee, is required for such inpatient stays to be 
covered in the same manner as required for adjunctive dental care 
described in paragraph (e)(10)(iii) of this section. Regardless of 
whether or not

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the preauthorization request for the hospital admission is approved and 
thus qualifies for institutional benefits, the professional service 
related to the nonadjunctive dental care is not covered.
    (11) Drug abuse. Under the Basic Program, benefits may be extended 
for medically necessary prescription drugs required in the treatment of 
an illness or injury or in connection with maternity care (refer to 
paragraph (d) of this section). However, CHAMPUS benefits cannot be 
authorized to support of maintain an existing or potential drug abuse 
situation, whether or not the drugs (under other circumstances) are 
eligible for benefit consideration and whether or not obtained by legal 
means.
    (i) Limitations on who can prescribe drugs. CHAMPUS benefits are not 
available for any drugs prescribed by a member of the beneficiary's 
family or by a nonfamily member residing in the same household with the 
beneficiary or sponsor.
    (ii) Drug maintenance programs excluded. Drug maintenance programs 
when one addictive drug is substituted for another on a maintenance 
basis (such as methadone substituted for heroin) are not covered. This 
exclusion applies even in areas outside the United States where 
addictive drugs are dispensed legally by physicians on a maintenance 
dosage level.
    (iii) Kinds of prescription drugs that are monitored carefully by 
CHAMPUS for possible abuse situations--(A) Narcotics. Examples are 
Morphine and Demerol.
    (B) Nonnarcotic analgesics. Examples are Talwin and Darvon.
    (C) Tranquilizers. Examples are Valium, Librium, and Meprobamate.
    (D) Barbiturates. Examples are Seconal and Nembuttal.
    (E) Nonbarbituate hypnotics. Examples are Doriden and Chloral 
Hydrate.
    (F) Stimulants. Examples are amphetamines.
    (iv) CHAMPUS fiscal intermediary responsibilities. CHAMPUS fiscal 
intermediaries are responsible for implementing utilization control and 
quality assurance procedures designed to identify possible drug abuse 
situations. The CHAMPUS fiscal intermediary is directed to screen all 
drug claims for potential overutilization and irrational prescribing of 
drugs, and to subject any such cases to extensive review to establish 
the necessity for the drugs and their appropriateness on the basis of 
diagnosis or definitive symptoms.
    (A) When a possible drug abuse situation is identified, all claims 
for drugs for that specific beneficiary or provider will be suspended 
pending the results of a review.
    (B) If the review determines that a drug abuse situation does in 
fact exist, all drug claims held in suspense will be denied.
    (C) If the record indicates previously paid drug benefits, the prior 
claims for that beneficiary or provider will be reopened and the 
circumstances involved reviewed to determine whether or not drug abuse 
also existed at the time the earlier claims were adjudicated. If drug 
abuse is later ascertained, benefit payments made previously will be 
considered to have been extended in error and the amounts so paid 
recouped.
    (D) Inpatient stays primarily for the purpose of obtaining drugs and 
any other services and supplies related to drug abuse also are excluded.
    (v) Unethical or illegal provider practices related to drugs. Any 
such investigation into a possible drug abuse that uncovers unethical or 
illegal drug dispensing practices on the part of an institution, a 
pharmacy, or physician will be referred to the professional or 
investigative agency having jurisdiction. CHAMPUS fiscal intermediaries 
are directed to withhold payment of all CHAMPUS claims for services and 
supplies rendered by a provider under active investigation for possible 
unethical or illegal drug dispensing activities.
    (vi) Detoxification. The above monitoring and control of drug abuse 
situations shall in no way be construed to deny otherwise covered 
medical services and supplies related to drug detoxification (including 
newborn, addicted infants) when medical supervision is required.
    (12) Custodial care. The statute under which CHAMPUS operates 
specifically excludes custodial care. Many beneficiaries and sponsors 
misunderstand what is meant by custodial care, assuming that because 
custodial care is

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not covered, it implies the custodial care is not necessary. This is not 
the case; it only means the care being provided is not a type of care 
for which CHAMPUS benefits can be extended.
    (i) Kinds of conditions that can result in custodial care. There is 
no absolute rule that can be applied. With most conditions, there is a 
period of active treatment before custodial care, some much more 
prolonged than others. Examples of potential custodial care cases may be 
a spinal cord injury resulting in extensive paralysis, a severe cerebral 
vascular accident, multiple sclerosis in its latter stages, or presenile 
and senile dementia. These conditions do not result necessarily in 
custodial care but are indicative of the types of conditions that 
sometimes do. It is not the condition itself that is controlling, but 
whether the care being rendered falls within the definition of custodial 
care (refer to Sec. 199.2 of this part for the definition of 
``custodial care'').
    (ii) Benefits available in connection with a custodial care case. 
CHAMPUS benefits are not available for services related to a custodial 
care case, with the following specific exceptions:
    (A) Prescription drugs and medicines, medical supplies and durable 
medical equipment. Benefits are payable for otherwise covered 
prescription drugs and medicines, medical supplies and durable medical 
equipment.
    (B) Nursing services, limited. Recognizing that even though the care 
being received is determined primarily to be custodial, an occasional 
specific skilled nursing service may be required. When it is determined 
such skilled nursing services are needed, benefits may be extended for 
one hour of nursing care per day.
    (C) Physician services, limited. Recognizing that even though the 
care being received is determined primarily to be custodial, occasional 
physician monitoring may be required to maintain the patient's 
condition. When it is determined that a patient is receiving custodial 
care, benefits may be extended for up to twelve physician visits per 
calendar year for the custodial condition (not to exceed one per month).
    Note: CHAMPUS benefits may be extended for additional physician 
visits related to the treatment of a condition other than the condition 
for which the patient is receiving custodial care (an example is a 
broken leg as a result of a fall).
    (D) Payment for prescription drugs, medical supplies, durable 
medical equipment and limited skilled nursing and physician services 
does not affect custodial care determination. The fact that CHAMPUS 
extends benefits for prescription drugs, medical supplies, durable 
medical equipment, and limited skilled nursing and physician services in 
no way affects the custodial care determination if the case otherwise 
falls within the definition of custodial care.
    (iii) Exception to custodial care exclusion, admission to a 
hospital. CHAMPUS benefits may be extended for otherwise covered 
services or supplies directly related to a medically necessary admission 
to an acute care general or special hospital (as defined in paragraph 
(b)(4)(i), section 199.6 of this part), if the care is at the 
appropriate level and meets other requirements of this Regulation.
    (iv) Reasonable care for which benefits were authorized or 
reimbursed before June 1, 1977. It is recognized that care for which 
benefits were authorized or reimbursed before the implementation date of 
DoD 6010.8-R may be excluded under the custodial care limitations set 
forth in the Regulation. Therefore, an exception to the custodial care 
limitations set forth in this part exists whereby reasonable care for 
which benefits authorized or reimbursed under the Basic Program before 
June 1, 1977, shall continue to be authorized even though the care would 
be excluded as a benefit under the custodial care limitations of the DoD 
6010.8-R. Continuation of CHAMPUS benefits in such cases is limited as 
follows:
    (A) Initial authorization or reimbursement before June 1, 1977. The 
initial CHAMPUS authorization or reimbursement for the care occurred 
before June 1, 1977; and,
    (B) Continued care. The care has been continuous since the initial 
CHAMPUS authorization or reimbursement; and,
    (C) Reasonable care. The care is reasonable. CHAMPUS benefits shall 
be continued for reasonable care up to the same level of benefits and 
for the same period of eligibility authorized or reimbursed before June 
1, 1977. Care that is

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excessive or otherwise unreasonable will be reduced or eliminated from 
the continued care authorized under this exception.
    (13) Domiciliary care. The statute under which CHAMPUS operates also 
specifically excludes domiciliary care (refer to Sec. 199.2 of this 
part for the definition of ``Domiciliary Care'').
    (i) Examples of domiciliary care situations. The following are 
examples of domiciliary care for which CHAMPUS benefits are not payable.
    (A) Home care is not available. Institutionalization primarily 
because parents work, or extension of a hospital stay beyond what is 
medically necessary because the patient lives alone, are examples of 
domiciliary care provided because there is no other family member or 
other person available in the home.
    (B) Home care is not suitable. Institutionalization of a child 
because a parent (or parents) is an alcoholic who is not responsible 
enough to care for the child, or because someone in the home has a 
contagious disease, are examples of domiciliary care being provided 
because the home setting is unsuitable.
    (C) Family unwilling to care for a person in the home. A child who 
is difficult to manage may be placed in an institution, not because 
institutional care is medically necessary, but because the family does 
not want to handle him or her in the home. Such institutionalization 
would represent domiciliary care, that is, the family being unwilling to 
assume responsibility for the child.
    (ii) Benefits available in connection with a domiciliary care case. 
Should the beneficiary receive otherwise covered medical services or 
supplies while also being in a domiciliary care situation, CHAMPUS 
benefits are payable for those medical services or supplies, or both, in 
the same manner as though the beneficiary resided in his or her own 
home. Such benefits would be cost-shared as though rendered to an 
outpatient.
    (iii) General exclusion. Domiciliary care is institutionalization 
essentially to provide a substitute home--not because it is medically 
necessary for the beneficiary to be in the institution (although there 
may be conditions present that have contributed to the fact that 
domiciliary care is being rendered). CHAMPUS benefits are not payable 
for any costs or charges related to the provision of domiciliary care. 
While a substitute home or assistance may be necessary for the 
beneficiary, domiciliary care does not represent the kind of care for 
which CHAMPUS benefits can be provided.
    (14) CT scanning--(i) Approved CT scan services. Benefits may be 
extended for medically necessary CT scans of the head or other 
anatomical regions of the body when all of the following conditions are 
met:
    (A) The patient is referred for the diagnostic procedure by a 
physician.
    (B) The CT scan procedure is consistent with the preliminary 
diagnosis or symptoms.
    (C) Other noninvasive and less costly means of diagnosis have been 
attempted or are not appropriate.
    (D) The CT scan equipment is licensed or registered by the 
appropriate state agency responsible for licensing or registering 
medical equipment that emits ionizing radiation.
    (E) The CT scan equipment is operated under the general supervision 
and direction of a physician.
    (F) The results of the CT scan diagnostic procedure are interpreted 
by a physician.
    (ii) Review guidelines and criteria. The Director, OCHAMPUS, or a 
designee, will issue specific guidelines and criteria for CHAMPUS 
coverage of medically necessary head and body part CT scans.
    (15) Morbid obesity. The CHAMPUS morbid obesity benefit is limited 
to the gastric bypass, gastric stapling, or gastroplasty method.
    (i) Conditions for coverage. Payment may be extended for the gastric 
bypass, gastric stapling, or gastroplasty method only when one of the 
following conditions is met:
    (A) The patient is 100 pounds over the ideal weight for height and 
bone structure and has an associated severe medical condition. These 
associated medical conditions are diabetes mellitus, hypertension, 
cholecystitis, narcolepsy, pickwickian syndrome (and other severe 
respiratory disease), hypothalmic disorders, and severe arthritis of the 
weight-bearing joints.

[[Page 128]]

    (B) The patient is 200 percent or more of the ideal weight for 
height and bone structure. An associated medical condition is not 
required for this category.
    (C) The patient has had an intestinal bypass or other surgery for 
obesity and, because of complications, requires a second surgery (a 
takedown). The surgeon in many cases, will do a gastric bypass, gastric 
stapling, or gastroplasty to help the patient avoid regaining the weight 
that was lost. In this situation, payment is authorized even though the 
patient's condition technically may not meet the definition of morbid 
obesity because of the weight that was already lost following the 
initial surgery.
    (ii) Exclusions. (A) CHAMPUS payment may not be made for nonsurgical 
treatment of obesity or morbid obesity, for dietary control, or weight 
reduction.
    (B) CHAMPUS payment may not be made for surgical procedures other 
than the gastric bypass, gastric stapling, or gastroplasty, even if 
morbid obesity is present.
    (16) Maternity care. (i) Benefit. The CHAMPUS Basic Program may 
share the cost of medically necessary services and supplies associated 
with maternity care which are not otherwise excluded by this part.
    (ii) Cost-share. Maternity care cost-share shall be determined as 
follows:
    (A) Inpatient cost-share formula applies to maternity care ending in 
childbirth in, or on the way to, a hospital inpatient childbirth unit, 
and for maternity care ending in a non-birth outcome not otherwise 
excluded by this part.
    (B) Ambulatory surgery cost-share formula applies to maternity care 
ending in childbirth in, or on the way to, a birthing center to which 
the beneficiary is admitted and from which the beneficiary has received 
prenatal care, or a hospital-based outpatient birthing room.
    (C) Outpatient cost-share formula applies to maternity care which 
terminates in a planned childbirth at home.
    (D) Otherwise covered medical services and supplies directly related 
to ``Complications of pregnancy,'' as defined in Sec. 199.2 of this 
part, will be cost-shared on the same basis as the related maternity 
care for a period not to exceed 42 days following termination of the 
pregnancy and thereafter cost-shared on the basis of the inpatient or 
outpatient status of the beneficiary when medically necessary services 
and supplies are received.
    (17) Biofeedback Therapy. Biofeedback therapy is a technique by 
which a person is taught to exercise control over a physiologic process 
occurring within the body. By using modern biomedical instruments the 
patient learns how a specific physiologic system within his body 
operates and how to modify the performance of this particular system.
    (i) Benefits Provided. CHAMPUS benefits are payable for services and 
supplies in connection with electrothermal, electromyograph and 
electrodermal biofeedback therapy when there is documentation that the 
patient has undergone an appropriate medical evaluation, that their 
present condition is not responding to or no longer responds to other 
forms of conventional treatment, and only when provided as treatment for 
the following conditions:
    (A) Adjunctive treatment for Raynaud's Syndrome.
    (B) Adjunctive treatment for muscle re-education of specific muscle 
groups or for treating pathological muscle abnormalities of spasticity, 
or incapacitating muscle spasm or weakness.
    (ii) Limitations. Payable benefits include initial intake 
evaluation. Treatment following the initial intake evaluation is limited 
to a maximum of 20 inpatient and outpatient biofeedback treatments per 
calendar year.
    (iii) Exclusions. Benefits are excluded for biofeedback therapy for 
the treatment of ordinary muscle tension states or for psychosomatic 
conditions. Benefits are also excluded for the rental or purchase of 
biofeedback equipment.
    (iv) Provider Requirements. A provider of biofeedback therapy must 
be a CHAMPUS-authorized provider. (Refer to Sec. 199.6, ``Authorized 
Providers). If biofeedback treatment is provided by other than a 
physician, the patient must be referred by a physician.
    (v) Implementation Guidelines. The Director of OCHAMPUS shall issue 
guidelines as are necessary to implement the provision of this 
paragraph.

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    (18) Cardiac rehabilitation. Cardiac rehabilitation is the process 
by which individuals are restored to their optimal physical, medical, 
and psychological status, after a cardiac event. Cardiac rehabilitation 
is often divided into three phases. Phase I begins during inpatient 
hospitalization and is managed by the patient's personal physician. 
Phase II is a medically supervised outpatient program which begins 
following discharge. Phase III is a lifetime maintenance program 
emphasizing continuation of physical fitness with periodic followup. 
Each phase includes an exercise component, patient education, and risk 
factor modification. There may be considerable variation in program 
components, intensity, and duration.
    (i) Benefits Provided. CHAMPUS benefits are available on an 
inpatient or outpatient basis for services and supplies provided in 
connection with a cardiac rehabilitation program when ordered by a 
physician and provided as treatment for patients who have experienced 
the following cardiac events within the preceding twelve (12) months:
    (A) Myocardial Infarction.
    (B) Coronary Artery Bypass Graft.
    (C) Coronary Angioplasty.
    (D) Percutaneous Transluminal Coronary Angioplasty
    (E) Chronic Stable Angina (see limitations below).
    (F) Heart valve surgery.
    (G) Heart or Heart-lung Transplantation.
    (ii) Limitations. Payable benefits include separate allowance for 
the initial evaluation and testing. Outpatient treatment following the 
initial intake evaluation and testing is limited to a maximum of thirty-
six (36) sessions per cardiac event, usually provided 3 sessions per 
week for twelve (12) weeks. Patients diagnosed with chronic stable 
angina are limited to one treatment episode (36 sessions) in a calendar 
year.
    (iii) Exclusions. Phase III cardiac rehabilitation lifetime 
maintenance programs performed at home or in medically unsupervised 
settings are not covered.
    (iv) Providers. A provider of cardiac rehabilitation services must 
be a TRICARE authorized hospital (see Sec. 199.6 (b)(4)(i)) or a 
freestanding cardiac rehabilitation facility that meets the requirements 
of Sec. 199.6 (f). All cardiac rehabilitation services must be ordered 
by a physician.
    (v) Payment. Payment for outpatient treatment will be based on an 
all inclusive allowable charge per session. Inpatient treatment will be 
paid based upon the reimbursement system in place for the hospital where 
the services are rendered.
    (vi) Implementation Guidelines. The Director of OCHAMPUS shall issue 
guidelines as are necessary to implement the provisions of this 
paragraph.
    (19) Hospice care. Hospice care is a program which provides an 
integrated set of services and supplies designed to care for the 
terminally ill. This type of care emphasizes palliative care and 
supportive services, such as pain control and home care, rather than 
cure-oriented services provided in institutions that are otherwise the 
primary focus under CHAMPUS. The benefit provides coverage for a humane 
and sensible approach to care during the last days of life for some 
terminally ill patients.
    (i) Benefit coverage. CHAMPUS beneficiaries who are terminally ill 
(that is, a life expectancy of six months or less if the disease runs 
its normal course) will be eligible for the following services and 
supplies in lieu of most other CHAMPUS benefits:
    (A) Physician services.
    (B) Nursing care provided by or under the supervision of a 
registered professional nurse.
    (C) Medical social services provided by a social worker who has at 
least a bachelor's degree from a school accredited or approved by the 
Council on Social Work Education, and who is working under the direction 
of a physician. Medical social services include, but are not limited to 
the following:
    (1) Assessment of social and emotional factors related to the 
beneficiary's illness, need for care, response to treatment, and 
adjustment to care.
    (2) Assessment of the relationship of the beneficiary's medical and 
nursing requirements to the individual's home situation, financial 
resources, and availability of community resources.

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    (3) Appropriate action to obtain available community resources to 
assist in resolving the beneficiary's problem.
    (4) Counseling services that are required by the beneficiary.
    (D) Counseling services provided to the terminally ill individual 
and the family member or other persons caring for the individual at 
home. Counseling, including dietary counseling, may be provided both for 
the purpose of training the individual's family or other care-giver to 
provide care, and for the purpose of helping the individual and those 
caring for him or her to adjust to the individual's approaching death. 
Bereavement counseling, which consists of counseling services provided 
to the individual's family after the individual's death, is a required 
hospice service but it is not reimbursable.
    (E) Home health aide services furnished by qualified aides and 
homemaker services. Home health aides may provide personal care 
services. Aides also may perform household services to maintain a safe 
and sanitary environment in areas of the home used by the patient. 
Examples of such services are changing the bed or light cleaning and 
laundering essential to the comfort and cleanliness of the patient. Aide 
services must be provided under the general supervision of a registered 
nurse. Homemaker services may include assistance in personal care, 
maintenance of a safe and healthy environment, and services to enable 
the individual to carry out the plan of care. Qualifications for home 
health aides can be found in 42 CFR 484.36.
    (F) Medical appliances and supplies, including drugs and 
biologicals. Only drugs that are used primarily for the relief of pain 
and symptom control related to the individual's terminal illness are 
covered. Appliances may include covered durable medical equipment, as 
well as other self-help and personal comfort items related to the 
palliation or management of the patient's condition while he or she is 
under hospice care. Equipment is provided by the hospice for use in the 
beneficiary's home while he or she is under hospice care. Medical 
supplies include those that are part of the written plan of care. 
Medical appliances and supplies are included within the hospice all-
inclusive rates.
    (G) Physical therapy, occupational therapy and speech-language 
pathology services provided for purposes of symptom control or to enable 
the individual to maintain activities of daily living and basic 
functional skills.
    (H) Short-term inpatient care provided in a Medicare participating 
hospice inpatient unit, or a Medicare participating hospital, skilled 
nursing facility (SNF) or, in the case of respite care, a Medicaid-
certified nursing facility that additionally meets the special hospice 
standards regarding staffing and patient areas. Services provided in an 
inpatient setting must conform to the written plan of care. Inpatient 
care may be required for procedures necessary for pain control or acute 
or chronic symptom management. Inpatient care may also be furnished to 
provide respite for the individual's family or other persons caring for 
the individual at home. Respite care is the only type of inpatient care 
that may be provided in a Medicaid-certified nursing facility. The 
limitations on custodial care and personal comfort items applicable to 
other CHAMPUS services are not applicable to hospice care.
    (ii) Core services. The hospice must ensure that substantially all 
core services are routinely provided directly by hospice employees; 
i.e., physician services, nursing care, medical social services, and 
counseling for individuals and care givers. Refer to paragraphs 
(e)(19)(i)(A), (e)(19)(i)(B), (e)(19)(i)(C), and (e)(19)(i)(D) of this 
section.
    (iii) Non-core services. While non-core services (i.e., home health 
aide services, medical appliances and supplies, drugs and biologicals, 
physical therapy, occupational therapy, speech-language pathology and 
short-term inpatient care) may be provided under arrangements with other 
agencies or organizations, the hospice must maintain professional 
management of the patient at all times and in all settings. Refer to 
paragraphs (e)(19)(i)(E), (e)(19)(i)(F), (e)(19)(i)(G), and 
(e)(19)(i)(H) of this section.
    (iv) Availability of services. The hospice must make nursing 
services, physician services, and drugs and

[[Page 131]]

biologicals routinely available on a 24-hour basis. All other covered 
services must be made available on a 24-hour basis to the extent 
necessary to meet the needs of individuals for care that is reasonable 
and necessary for the palliation and management of the terminal illness 
and related condition. These services must be provided in a manner 
consistent with accepted standards of practice.
    (v) Periods of care. Hospice care is divided into distinct periods/
episodes of care. The terminally ill beneficiary may elect to receive 
hospice benefits for an initial period of 90 days, a subsequent period 
of 90 days, a second subsequent period of 30 days, and a final period of 
unlimited duration.
    (vi) Conditions for coverage. The CHAMPUS beneficiary must meet the 
following conditions/criteria in order to be eligible for the hospice 
benefits and services referenced in paragraph (e)(19)(i) of this 
section.
    (A) There must be written certification in the medical record that 
the CHAMPUS beneficiary is terminally ill with a life expectancy of six 
months or less if the terminal illness runs its normal course.
    (1) Timing of certification. The hospice must obtain written 
certification of terminal illness for each of the election periods 
described in paragraph (e)(19(vi)(B) of this section, even if a single 
election continues in effect for two, three or four periods.
    (i) Basic requirement. Except as provided in paragraph 
(e)(19(vi)(A)(1)(ii) of this section the hospice must obtain the written 
certification no later than two calendar days after the period begins.
    (ii) Exception. For the initial 90-day period, if the hospice cannot 
obtain the written certifications within two calendar days, it must 
obtain oral certifications within two calendar days, and written 
certifications no later than eight calendar days after the period 
begins.
    (2) Sources of certification. Physician certification is required 
for both initial and subsequent election periods.
    (i) For the initial 90-day period, the hospice must obtain written 
certification statements (and oral certification statements if required 
under paragraph (e)(19(vi)(A)(i)(ii) of this section) from:
    (A) The individual's attending physician if the individual has an 
attending physician; and
    (B) The medical director of the hospice or the physician member of 
the hospice interdisciplinary group.
    (ii) For subsequent periods, the only requirement is certification 
by one of the physicians listed in paragraph (e)(19)(vi)(A)(2)(i)(B) of 
this section.
    (B) The terminally ill beneficiary must elect to receive hospice 
care for each specified period of time; i.e., the two 90-day periods, a 
subsequent 30-day period, and a final period of unlimited duration. If 
the individual is found to be mentally incompetent, his or her 
representative may file the election statement. Representative means an 
individual who has been authorized under State law to terminate medical 
care or to elect or revoke the election of hospice care on behalf of a 
terminally ill individual who is found to be mentally incompetent.
    (1) The episodes of care must be used consecutively; i.e., the two 
90-day periods first, then the 30-day period, followed by the final 
period. The periods of care may be elected separately at different 
times.
    (2) The initial election will continue through subsequent election 
periods without a break in care as long as the individual remains in the 
care of the hospice and does not revoke the election.
    (3) The effective date of the election may begin on the first day of 
hospice care or any subsequent day of care, but the effective date 
cannot be made prior to the date that the election was made.
    (4) The beneficiary or representative may revoke a hospice election 
at any time, but in doing so, the remaining days of that particular 
election period are forfeited and standard CHAMPUS coverage resumes. To 
revoke the hospice benefit, the beneficiary or representative must file 
a signed statement of revocation with the hospice. The statement must 
provide the date that the revocation is to be effective. An individual 
or representative may not designate an effective date earlier than the 
date that the revocation is made.

[[Page 132]]

    (5) If an election of hospice benefits has been revoked, the 
individual, or his or her representative may at any time file a hospice 
election for any period of time still available to the individual, in 
accordance with Sec. 199.4(e)(19)(vi)(B).
    (6) A CHAMPUS beneficiary may change, once in each election period, 
the designation of the particular hospice from which he or she elects to 
receive hospice care. To change the designation of hospice programs the 
individual or representative must file, with the hospice from which care 
has been received and with the newly designated hospice, a statement 
that includes the following information:
    (i) The name of the hospice from which the individual has received 
care and the name of the hospice from which he or she plans to receive 
care.
    (ii) The date the change is to be effective.
    (7) Each hospice will design and print its own election statement to 
include the following information:
    (i) Identification of the particular hospice that will provide care 
to the individual.
    (ii) The individual's or representative's acknowledgment that he or 
she has been given a full understanding of the palliative rather than 
curative nature of hospice care, as it relates to the individual's 
terminal illness.
    (iii) The individual's or representative's acknowledgment that he or 
she understands that certain other CHAMPUS services are waived by the 
election.
    (iv) The effective date of the election.
    (v) The signature of the individual or representative, and the date 
signed.
    (8) The hospice must notify the CHAMPUS contractor of the 
initiation, change or revocation of any election.
    (C) The beneficiary must waive all rights to other CHAMPUS payments 
for the duration of the election period for:
    (1) Care provided by any hospice program other than the elected 
hospice unless provided under arrangements made by the elected hospice; 
and
    (2) Other CHAMPUS basic program services/benefits related to the 
treatment of the terminal illness for which hospice care was elected, or 
to a related condition, or that are equivalent to hospice care, except 
for services provided by:
    (i) The designated hospice;
    (ii) Another hospice under arrangement made by the designated 
hospice; or
    (iii) An attending physician who is not employed by or under 
contract with the hospice program.
    (3) Basic CHAMPUS coverage will be reinstated upon revocation of the 
hospice election.
    (D) A written plan of care must be established by a member of the 
basic interdisciplinary group assessing the patient's needs. This group 
must have at least one physician, one registered professional nurse, one 
social worker, and one pastoral or other counselor.
    (1) In establishing the initial plan of care the member of the basic 
interdisciplinary group who assesses the patient's needs must meet or 
call at least one other group member before writing the initial plan of 
care.
    (2) At least one of the persons involved in developing the initial 
plan must be a nurse or physician.
    (3) The plan must be established on the same day as the assessment 
if the day of assessment is to be a covered day of hospice care.
    (4) The other two members of the basic interdisciplinary group--the 
attending physician and the medical director or physician designee--must 
review the initial plan of care and provide their input to the process 
of establishing the plan of care within two calendar days following the 
day of assessment. A meeting of group members is not required within 
this 2-day period. Input may be provided by telephone.
    (5) Hospice services must be consistent with the plan of care for 
coverage to be extended.
    (6) The plan must be reviewed and updated, at intervals specified in 
the plan, by the attending physician, medical director or physician 
designee and interdisciplinary group. These reviews must be documented 
in the medical records.
    (7) The hospice must designate a registered nurse to coordinate the 
implementation of the plan of care for each patient.
    (8) The plan must include an assessment of the individual's needs 
and

[[Page 133]]

identification of the services, including the management of discomfort 
and symptom relief. It must state in detail the scope and frequency of 
services needed to meet the patient's and family's needs.
    (E) Complete medical records and all supporting documentation must 
be submitted to the CHAMPUS contractor within 30 days of the date of its 
request. If records are not received within the designated time frame, 
authorization of the hospice benefit will be denied and any prior 
payments made will be recouped. A denial issued for this reason is not 
an initial determination under Sec. 199.10, and is not appealable.
    (vii) Appeal rights under hospice benefit. A beneficiary or provider 
is entitled to appeal rights for cases involving a denial of benefits in 
accordance with the provisions of this part and Sec. 199.10.
    (20) [Reserved]
    (21) Home health services. Home health services are covered when 
furnished by, or under arrangement with, a home health agency (HHA) that 
participates in the TRICARE program, and provides care on a visiting 
basis in the beneficiary's home. Covered HHA services are the same as 
those provided under Medicare under section 1861(m) of the Social 
Security Act (42 U.S.C. 1395x(m)) and 42 CFR part 409, subpart E.
    (i) Benefit coverage. Coverage will be extended for the following 
home health services subject to the conditions of coverage prescribed in 
paragraph (e)(21)(ii) of this section:
    (A) Part-time or intermittent skilled nursing care furnished by a 
registered nurse or a licensed practical (vocational) nurse under the 
supervision of a registered nurse;
    (B) Physical therapy, speech-language pathology, and occupational 
therapy;
    (C) Medical social services under the direction of a physician;
    (D) Part-time or intermittent services of a home health aide who has 
successfully completed a training program approved by the Director TMA;
    (E) Medical supplies, a covered osteoporosis drug (as defined in the 
Social Security Act 1861(kk), but excluding other drugs and biologicals) 
and durable medical equipment;
    (F) Medical services provided by an interim or resident-in-training 
of a hospital, under an approved teaching program of the hospital in the 
case of an HHA that is affiliated or under common control of a hospital; 
and
    (G) Services at hospitals, SNFs or rehabilitation centers when they 
involve equipment too cumbersome to bring to the home but not including 
transportation of the individual in connection with any such item or 
service.
    (ii) Conditions for Coverage. The following conditions/criteria must 
be met in order to be eligible for the HHA benefits and services 
referenced in paragraph (e)(21)(i) of this section:
    (A) The person for whom the services are provided is an eligible 
TRICARE beneficiary.
    (B) The HHA that is providing the services to the beneficiary has in 
effect a valid agreement to participate in the TRICARE program.
    (C) Physician certifies the need for home health services because 
the beneficiary is homebound.
    (D) The services are provided under a plan of care established and 
approved by a physician.
    (1) The plan of care must contain all pertinent diagnoses, including 
the patient's mental status, the types of services, supplies, and 
equipment required, the frequency of visits to be made, prognosis, 
rehabilitation potential, functional limitations, activities permitted, 
nutritional requirements, all medications and treatments, safety 
measures to protect against injury, instructions for timely discharge or 
referral, and any additional items the HHA or physician chooses to 
include.
    (2) The orders on the plan of care must specify the type of services 
to be provided to the beneficiary, both with respect to the professional 
who will provide them and the nature of the individual services, as well 
as the frequency of the services.
    (E) The beneficiary must need skilled nursing care on an 
intermittent basis or physical therapy or speech-language pathology 
services, or have continued need for occupational therapy after the need 
for skilled nursing care, physical therapy, or speech-language pathology 
services has ceased.

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    (F) The beneficiary must receive, and an HHA must provide, a 
patient-specific, comprehensive assessment that:
    (1) Accurately reflects the patient's current health status and 
includes information that may be used to demonstrate the patient's 
progress toward achievement of desired outcomes;
    (2) Identifies the beneficiary's continuing need for home care and 
meets the beneficiary's medical, nursing, rehabilitative, social, and 
discharge planning needs.
    (3) Incorporates the use of the current version of the Outcome and 
Assessment Information Set (OASIS) items, using the language and 
groupings of the OASIS items, as specified by the Director, TRICARE 
Management Activity.
    (G) TRICARE is the appropriate payer.
    (H) The services for which payment is claimed are not otherwise 
excluded from payment.
    (I) Any other conditions of coverage/participation that may be 
required under Medicare's HHA benefit; i.e., coverage guidelines as 
prescribed under Sections 1861(o) and 1891 of the Social Security Act 
(42 U.S.C. 1395x(o) and 1395bbb) and 42 CFR Part 484.
    (22) Pulmonary rehabilitation. TRICARE benefits are payable for 
beneficiaries whose conditions are considered appropriate for pulmonary 
rehabilitation according to guidelines adopted by the Executive 
Director, TMA, or a designee.
    (23) A speech generating device (SGD) as defined in Sec. 199.2 of 
this part is covered as a voice prosthesis. The prosthesis provisions 
found in paragraph (d)(3)(vii) of this section apply.
    (24) A hearing aid, but only for a dependent of a member of the 
uniformed services on active duty and only if the dependent has a 
profound hearing loss as defined in Sec. 199.2 of this part. Medically 
necessary and appropriate services and supplies, including hearing 
examinations, required in connection with this hearing aid benefit are 
covered.
    (25) Rehabilitation therapy as defined in Sec. 199.2 of this part 
to improve, restore, or maintain function, or to minimize or prevent 
deterioration of function, of a patient when prescribed by a physician. 
The rehabilitation therapy must be medically necessary and appropriate 
medical care, rendered by an authorized provider, necessary to the 
establishment of a safe and effective maintenance program in connection 
with a specific medical condition, and must not be custodial care or 
otherwise excluded from coverage.
    (f) Beneficiary or sponsor liability-- (1) General. As stated in the 
introductory paragraph to this section, the Basic Program is essentially 
a supplemental program to the Uniformed Services direct medical care 
system. To encourage use of the Uniformed Services direct medical care 
system wherever its facilities are available and appropriate, the Basic 
Program benefits are designed so that it is to the financial advantage 
of a CHAMPUS beneficiary or sponsor to use the direct medical care 
system. When medical care is received from civilian sources, a CHAMPUS 
beneficiary is responsible for payment of certain deductible and cost-
sharing amounts in connection with otherwise covered services and 
supplies. By statute, this joint financial responsibility between the 
beneficiary or sponsor and CHAMPUS is more favorable for dependents of 
members than for other classes of beneficiaries.
    (2) Dependents of members of the Uniformed Services. CHAMPUS 
beneficiary or sponsor liability set forth for dependents of members is 
as follows:
    (i) Annual fiscal year deductible for outpatient services and 
supplies.
    (A) For care rendered all eligible beneficiaries prior to April 1, 
1991, or when the active duty sponsor's pay grade is E-4 or below, 
regardless of the date of care:
    (1) Individual Deductible: Each beneficiary is liable for the first 
fifty dollars ($50.00) of the CHAMPUS-determined allowable amount on 
claims for care provided in the same fiscal year.
    (2) Family Deductible: The total deductible amount for all members 
of a family with the same sponsor during one fiscal year shall not 
exceed one hundred dollars ($100.00).
    (B) For care rendered on or after April 1, 1991, for all CHAMPUS 
beneficiaries except dependents of active duty sponsors in pay grades E-
4 or below.

[[Page 135]]

    (1) Individual Deductible: Each beneficiary is liable for the first 
one hundred and fifty dollars ($150.00) of the CHAMPUS-determined 
allowable amount on claims for care provided in the same fiscal year.
    (2) Family Deductible: The total deductible amount for all members 
of a family with the same sponsor during one fiscal year shall not 
exceed three hundred dollars ($300.00).
    (C) CHAMPUS-approved Ambulatory Surgical Centers or Birthing 
Centers. No deductible shall be applied to allowable amounts for 
services or items rendered to active duty for authorized NATO 
dependents.
    (D) Allowable Amount does not exceed Deductible Amount. If fiscal 
year allowable amounts for two or more beneficiary members of a family 
total less than $100.00 ($300.00 if paragraph (f) (2)(i)(B)(2) of this 
section applies), but more of the beneficiary members submit a claim for 
over $50.00 ($150.00 if paragraph (f)(2)(i)(B)(1) of this section 
applies), neither the family nor the individual deductible will have 
been met and no CHAMPUS benefits are payable.
    (E) For any family the outpatient deductible amounts will be applied 
sequentially as the CHAMPUS claims are processed.
    (F) If the fiscal year outpatient deductible under either paragraphs 
(f)(2)(i)(A) or (f)(2)(i)(B) of this section has been met by a 
beneficiary or a family through the submission of a claim or claims to a 
CHAMPUS fiscal intermediary in another geographic location from the 
location where a current claim is being submitted, the beneficiary or 
sponsor must obtain a deductible certificate from the CHAMPUS fiscal 
intermediary where the applicable beneficiary or family fiscal year 
deductible was met. Such deductible certificate must be attached to the 
current claim being submitted for benefits. Failure to obtain a 
deductible certificate under such circumstances will result in a second 
beneficiary or family fiscal year deductible being applied. However, 
this second deductible may be reimbursed once appropriate documentation, 
as described in paragraph (f)(2)(i)(F) of this section, is supplied to 
the CHAMPUS fiscal intermediary applying the second deductible.
    (G) Notwithstanding the dates specified in paragraphs (f)(2)(i)(A) 
and (f)(B)(2)(i) of this section in the case of dependents of active 
duty members of rank E-5 or above with Persian Gulf Conflict service, 
dependents of service members who were killed in the Gulf, or who died 
subsequent to Gulf service, and of members who retired prior to October 
1, 1991, after having served in the Gulf War, the deductible shall be 
the amount specified in paragraph (f)(2)(i)(A) of this section for care 
rendered prior to October 1, 1991, and the amount specified in paragraph 
(f)(2)(i)(B) of this section for care rendered on or after October 1, 
1991.
    (H) The Director, TRICARE Management Activity, may waive the annual 
individual or family fiscal year deductible for dependents of a Reserve 
Component member who is called or ordered to active duty for a period of 
more than 30 days but less than one year or a National guard member who 
is called or ordered to full-time federal National guard duty for a 
period of more than 30 days but less than one year, in support of a 
contingency operation (as defined in 10 U.S.C. 101(a)(13)). For purposes 
of this paragraph, a dependent is a lawful husband or wife of the member 
and a child as defined in paragraphs (b)(2)(ii)(A) through (F) and 
(b)(2)(ii)(H)(1), (2) and (4) of Part 199.3.
    (ii) Inpatient cost-sharing. Dependents of members of the Uniformed 
Services are responsible for the payment of the first $25 of the 
allowable institutional costs incurred with each covered inpatient 
admission to a hospital or other authorized institutional provider 
(refer to Sec. 199.6 of the part), or the amount the beneficiary or 
sponsor would have been charged had the inpatient care been provided in 
a Uniformed Service hospital, whichever is greater.
    Note: The Secretary of Defense (after consulting with the Secretary 
of Health and Human Services and the Secretary of Transportation) 
prescribes the fair charges for inpatient hospital care provided through 
Uniformed Services medical facilities. This determination is made each 
fiscal year.

[[Page 136]]

    (A) Inpatient cost-sharing payable with each separate inpatient 
admission. A separate cost-sharing amount (as described in paragraph 
(f)(2) of this section) is payable for each inpatient admission to a 
hospital or other authorized institution, regardless of the purpose of 
the admission (such as medical or surgical), regardless of the number of 
times the beneficiary is admitted, and regardless of whether or not the 
inpatient admissions are for the same or related conditions; except that 
successive inpatient admissions shall be deemed one inpatient 
confinement for the purpose of computing the inpatient cost-share 
payable, provided not more than 60 days have elapsed between the 
successive admissions. However, notwithstanding this provision, all 
admissions related to a single maternity episode shall be considered one 
confinement, regardless of the number of days between admissions (refer 
to paragraph (b) of this section).
    (B) Multiple family inpatient admissions. A separate cost-sharing 
amount is payable for each inpatient admission, regardless of whether or 
not two or more beneficiary members of a family are admitted at the same 
time or from the same cause (such as an accident). A separate 
beneficiary inpatient cost-sharing amount must be applied for each 
separate admission on each beneficiary member of the family.
    (C) Newborn patient in his or her own right. When a newborn infant 
remains as an inpatient in his or her own right (usually after the 
mother is discharged), the newborn child becomes the beneficiary and 
patient and the extended inpatient stay becomes a separate inpatient 
admission. In such a situation, a new, separate inpatient cost-sharing 
amount is applied. If a multiple birth is involved (such as twins or 
triplets) and two or more newborn infants become patients in their own 
right, a separate inpatient cost-sharing amount must be applied to the 
inpatient stay for each newborn child who has remained as an inpatient 
in his or her own right.
    (D) Inpatient cost-sharing for mental health services. For care 
provided on or after October 1, 1995, the inpatient cost-sharing for 
mental health services is $20 per day for each day of the inpatient 
admission. This $20 per day cost sharing amount applies to admissions to 
any hospital for mental health services, any residential treatment 
facility, any substance abuse rehabilitation facility, and any partial 
hospitalization program providing mental health or substance use 
disorder rehabilitation services.
    (iii) Outpatient cost-sharing. Dependents of members of the 
Uniformed Services are responsible for payment of 20 percent of the 
CHAMPUS-determined allowable cost or charge beyond the annual fiscal 
year deductible amount (as described in paragraph (f)(2)(i) of this 
section) for otherwise covered services or supplies provided on an 
outpatient basis by authorized providers.
    (iv) Ambulatory surgery. Notwithstanding the above provisions 
pertaining to outpatient cost-sharing, dependents of members of the 
Uniformed Services are responsible for payment of $25 for surgical care 
that is authorized and received while in an outpatient status and that 
has been designated in guidelines issued by the Director, OCHAMPUS, or a 
designee.
    (v) Psychiatric partial hospitalization services. Institutional and 
professional services provided under the psychiatric partial 
hospitalization program authorized by paragraph (b)(10) of this section 
shall be cost shared as inpatient services.
    (vi) Transitional Assistance Management Program (TAMP). Members of 
the Armed Forces (and their family members) who are eligible for TAMP 
under paragraph 199.3(e) of this Part are subject to the same 
beneficiary or sponsor liability as family members of members of the 
uniformed services described in this paragraph (f)(2).
    (3) Former members and dependents of former members. CHAMPUS 
beneficiary liability set forth for former members and dependents of 
former members is as follows:
    (i) Annual fiscal year deductible for outpatient services or 
supplies. The annual fiscal year deductible for otherwise covered 
outpatient services or supplies provided former members and dependents 
of former members is the

[[Page 137]]

same as the annual fiscal year outpatient deductible applicable to 
dependents of active duty members of rank E-5 or above (refer to 
paragraph (f)(2)(i)(A) or (B) of this section).
    (ii) Inpatient cost-sharing. Cost-sharing amounts for inpatient 
services shall be as follows:
    (A) Services subject to the CHAMPUS DRG-based payment system. The 
cost-share shall be the lesser of: an amount calculated by multiplying a 
per diem amount by the total number of days in the hospital stay except 
the day of discharge; or 25 percent of the hospital's billed charges. 
The per diem amount shall be calculated so that, in the aggregate, the 
total cost-sharing amounts for these beneficiaries is equivalent to 25 
percent of the CHAMPUS-determined allowable costs for covered services 
or supplies provided on an inpatient basis by authorized providers. The 
per diem amount shall be published annually by OCHAMPUS.
    (B) Services subject to the CHAMPUS mental health per diem payment 
system. The cost-share is dependent upon whether the hospital is paid a 
hospital-specific per diem or a regional per diem under the provisions 
of Sec. 199.14(a)(2). With respect to care paid for on the basis of a 
hospital specific per diem, the cost-share shall be 25% of the hospital-
specific per diem amount. For care paid for on the basis of a regional 
per diem, the cost share shall be the lower of a fixed daily amount or 
25% of the hospital's billed charges. The fixed daily amount shall be 25 
percent of the per diem adjusted so that total beneficiary cost shares 
will equal 25 percent of total payments under the mental health per diem 
payment system. These fixed daily amount shall be updated annually and 
published in the Federal Register along with the per diems published 
pursuant to Sec. 199.14(a)(2)(iv)(B).
    (C) Other services. For services exempt from the CHAMPUS DRG-based 
payment system and the CHAMPUS mental health per diem payment system and 
services provided by institutions other than hospitals, the cost-share 
shall be 25% of the CHAMPUS-determined allowable charges.
    (iii) Outpatient cost-sharing. Former members and dependents of 
former members are responsible for payment of 25 percent of the CHAMPUS-
determined allowable costs or charges beyond the annual fiscal year 
deductible amount (as described in paragraph (f)(2)(i) of this section) 
for otherwise covered services or supplies provided on an outpatient 
basis by authorized providers.
    (iv) Psychiatric partial hospitalization services. Institutional and 
professional services provided under the psychiatric partial 
hospitalization program authorized by paragraph (b)(10) of this section 
shall be cost shared as inpatient services.
    (4) Former spouses. CHAMPUS beneficiary liability for former spouses 
eligible under the provisions set forth in Sec. 199.3 of this part is 
as follows:
    (i) Annual fiscal year deductible for outpatient services or 
supplies. An eligible former spouse is responsible for the payment of 
the first $150.00 of the CHAMPUS-determined reasonable costs or charges 
for otherwise covered outpatient services or supplies provided in any 
one fiscal year. (Except for services received prior to April 1, 1991, 
the deductible amount is $50.00). The former spouse cannot contribute 
to, nor benefit from, any family deductible of the member or former 
member to whom the former spouse was married or of any CHAMPUS-eligible 
children.
    (ii) Inpatient cost-sharing. Eligible former spouses are responsible 
for payment of cost-sharing amounts the same as those required for 
former members and dependents of former members.
    (iii) Outpatient cost-sharing. Eligible former spouses are 
responsible for payment of 25 percent of the CHAMPUS-determined 
reasonable costs or charges beyond the annual fiscal year deductible 
amount for otherwise covered services or supplies provided on an 
outpatient basis by authorized providers.
    (5) Cost-Sharing under the Military-Civilian Health Services 
Partnership Program. Cost-sharing is dependent upon the type of 
partnership program entered into, whether external or internal. (See 
paragraph (p) of Sec. 199.1, for general requirements of the Military-

[[Page 138]]

Civilian Health Services Partnership Program.)
    (i) External Partnership Agreement. Authorized costs associated with 
the use of the civilian facility will be financed through CHAMPUS under 
the normal cost-sharing and reimbursement procedures applicable under 
CHAMPUS.
    (ii) Internal Partnership Agreement. Beneficiary cost-sharing under 
internal agreements will be the same as charges prescribed for care in 
military treatment facilities.
    (6)-(7) [Reserved]
    (8) Cost-sharing for services provided under special discount 
arrangements--(i) General rule. With respect to services determined by 
the Director, OCHAMPUS (or designee) to be covered by Sec. 199.14(i), 
the Director, OCHAMPUS (or designee) has authority to establish, as an 
exception to the cost-sharing amount normally required pursuant to this 
section, a different cost-share amount that appropriately reflects the 
application of the statutory cost-share to the discount arrangement.
    (ii) Specific applications. The following are examples of 
applications of the general rule; they are not all inclusive.
    (A) In the case of services provided by individual health care 
professionals and other noninstitutional providers, the cost-share shall 
be the usual percentage of the CHAMPUS allowable charge determined under 
Sec. 199.14(i).
    (B) In the case of services provided by institutional providers 
normally paid on the basis of a pre-set amount (such as DRG-based amount 
under Sec. 199.14(a)(1) or per-diem amount under Sec. 199.14(a)(2)), 
if the discount rate is lower than the pre-set rate, the cost-share 
amount that would apply for a beneficiary other than an active duty 
dependent pursuant to the normal pre-set rate would be reduced by the 
same percentage by which the pre-set rate was reduced in setting the 
discount rate.
    (9) Waiver of deductible amounts or cost-sharing not allowed--(i) 
General rule. Because deductible amounts and cost sharing are 
statutorily mandated, except when specifically authorized by law (as 
determined by the Director, OCHAMPUS), a provider may not waive or 
forgive beneficiary liability for annual deductible amounts or inpatient 
or outpatient cost sharing, as set forth in this section.
    (ii) Exception for bad debts. This general rule is not violated in 
cases in which a provider has made all reasonable attempts to effect 
collection, without success, and determines in accordance with generally 
accepted fiscal management standards that the beneficiary liability in a 
particular case is an uncollectible bad debt.
    (iii) Remedies for noncompliance. Potential remedies for 
noncompliance with this requirement include:
    (A) A claim for services regarding which the provider has waived the 
beneficiary's liability may be disallowed in full, or, alternatively, 
the amount payable for such a claim may be reduced by the amount of the 
beneficiary liability waived.
    (B) Repeated noncompliance with this requirement is a basis for 
exclusion of a provider.
    (10) Catastrophic loss protection for basic program benefits. Fiscal 
year limits, or catastrophic caps, on the amounts beneficiaries are 
required to pay are established as follows:
    (i) Dependents of active duty members. The maximum family liability 
is $1,000 for deductibles and cost-shares based on allowable charges for 
Basic Program services and supplies received in a fiscal year.
    (ii) All other beneficiaries. For all other categories of 
beneficiary families (including those eligible under CHAMPVA) the fiscal 
year cap is $3,000.
    (iii) Payment after cap is met. After a family has paid the maximum 
cost-share and deductible amounts (dependents of active duty members 
$1,000 and all others $3,000), for a fiscal year, CHAMPUS will pay 
allowable amounts for remaining covered services through the end of that 
fiscal year.
    Note to paragraph (f)(10): Under the Defense Authorization Act for 
Fiscal Year 2001, the cap for beneficiaries other than dependents of 
active duty members was reduced from $7,500 to $3,000 effective October 
30, 2000. Prior to this, the Defense Authorization Act for Fiscal Year 
1993 reduced this cap from $10,000 to $7,500 on October 1, 1992. The cap 
remains at $1,000 for dependents of active duty members.

[[Page 139]]

    (11) Beneficiary or sponsor liability under the Pharmacy Benefits 
Program. Beneficiary or sponsor liability under the Pharmacy Benefits 
Program is addressed in Sec. 199.21.
    (g) Exclusions and limitations. In addition to any definitions, 
requirements, conditions, or limitations enumerated and described in 
other sections of this part, the following specifically are excluded 
from the Basic Program:
    (1) Not medically or psychologically necessary. Services and 
supplies that are not medically or psychologically necessary for the 
diagnosis or treatment of a covered illness (including mental disorder) 
or injury, for the diagnosis and treatment of pregnancy or well-baby 
care except as provided in the following paragraph.
    (2) Unnecessary diagnostic tests. X-ray, laboratory, and 
pathological services and machine diagnostic tests not related to a 
specific illness or injury or a definitive set of symptoms except for 
cancer screening mammography and cancer screening papanicolaou (PAP) 
tests provided under the terms and conditions contained in the 
guidelines adopted by the Director, OCHAMPUS.
    (3) Institutional level of care. Services and supplies related to 
inpatient stays in hospitals or other authorized institutions above the 
appropriate level required to provide necessary medical care.
    (4) Diagnostic admission. Services and supplies related to an 
inpatient admission primarily to perform diagnostic tests, examinations, 
and procedures that could have been and are performed routinely on an 
outpatient basis.
    Note: If it is determined that the diagnostic x-ray, laboratory, and 
pathological services and machine tests performed during such admission 
were medically necessary and would have been covered if performed on an 
outpatient basis, CHAMPUS benefits may be extended for such diagnostic 
procedures only, but cost-sharing will be computed as if performed on an 
outpatient basis.
    (5) Unnecessary postpartum inpatient stay, mother or newborn. 
Postpartum inpatient stay of a mother for purposes of staying with the 
newborn infant (usually primarily for the purpose of breast feeding the 
infant) when the infant (but not the mother) requires the extended stay; 
or continued inpatient stay of a newborn infant primarily for purposes 
of remaining with the mother when the mother (but not the newborn 
infant) requires extended postpartum inpatient stay.
    (6) Therapeutic absences. Therapeutic absences from an inpatient 
facility, except when such absences are specifically included in a 
treatment plan approved by the Director, OCHAMPUS, or a designee. For 
cost-sharing provisions refer to Sec. 199.14, paragraph (f)(3).
    (7) Custodial care. Custodial care except as otherwise specifically 
provided in paragraphs (e)(12) (ii), (iii), and (iv) of this section.
    (8) Domiciliary care. Inpatient stays primarily for domiciliary care 
purposes.
    (9) Rest or rest cures. Inpatient stays primarily for rest or rest 
cures.
    (10) Amounts above allowable costs or charges. Costs of services and 
supplies to the extent amounts billed are over the CHAMPUS determined 
allowable cost or charge, as provided for in Sec. 199.14.
    (11) No legal obligation to pay, no charge would be made. Services 
or supplies for which the beneficiary or sponsor has no legal obligation 
to pay; or for which no charge would be made if the beneficiary or 
sponsor was not eligible under CHAMPUS; or whenever CHAMPUS is a 
secondary payer for claims subject to the CHAMPUS DRG-based payment 
system, amounts, when combined with the primary payment, which would be 
in excess of charges (or the amount the provider is obligated to accept 
as payment in full, if it is less than the charges).
    (12) Furnished without charge. Services or supplies furnished 
without charge.
    (13) Furnished by local, state, or Federal Government. Services and 
supplies paid for, or eligible for payment, directly or indirectly by a 
local, state, or Federal Government, except as provided under CHAMPUS, 
or by government hospitals serving the general public, or medical care 
provided by a Uniformed Service medical care facility, or benefits 
provided under title XIX of the Social Security Act (Medicaid) (refer to 
Sec. 199.8 of this part).
    (14) Study, grant, or research programs. Services and supplies 
provided as a

[[Page 140]]

part of or under a scientific or medical study, grant, or research 
program.
    (15) Unproven drugs, devices, and medical treatments or procedures. 
By law, CHAMPUS can only cost-share medically necessary supplies and 
services. Any drug, device, or medical treatment or procedure, the 
safety and efficacy of which have not been established, as described in 
this paragraph (g)(15), is unproved and cannot be cost-shared by 
CHAMPUS.
    (i) A drug, device, or medical treatment or procedure is unproven:
    (A) If the drug or device cannot be lawfully marketed without the 
approval or clearance of the United States Food and Drug Administration 
(FDA) and approval or clearance for marketing has not been given at the 
time the drug or device is furnished to the patient.
    Note: Although the use of drugs and medicines not approved by the 
FDA for commercial marketing, that is for use by humans, (even though 
permitted for testing on humans) is excluded from coverage as unproven, 
drugs grandfathered by the Federal Food, Drug and Cosmetic Act of 1938 
may be covered by CHAMPUS as if FDA approved.
    Certain cancer drugs, designated as Group C drugs (approved and 
distributed by the National Cancer Institute) and Treatment 
Investigational New Drugs (INDs), are not covered under CHAMPUS because 
they are not approved for commercial marketing by the FDA. However, 
medical care related to the use of Group C drugs and Treatment INDs can 
be cost-shared under CHAMPUS when the patient's medical condition 
warrants their administration and the care is provided in accordance 
with generally accepted standards of medical practice.
    CHAMPUS can also consider coverage of unlabeled or off-label uses of 
drugs that are Food and Drug Administration (FDA) approved drugs that 
are used for indications or treatments not included in the approved 
labeling. Approval for reimbursement of unlabeled or off-label uses 
requires review for medical necessity, and also requires demonstrations 
from medical literature, national organizations, or technology 
assessment bodies that the unlabeled or off-label use of the drug is 
safe, effective and in accordance with nationally accepted standards of 
practice in the medical community.
    (B) If a medical device (as defined by 21 U.S.C. 321(h)) with an 
Investigational Device Exemption (IDE) approved by the Food and Drug 
Administration is categorized by the FDA as experimental/investigational 
(FDA Category A).
    Note: CHAMPUS will consider for coverage a device with an FDA-
approved IDE categorized by the FDA as non-experimental/investigational 
(FDA Category B) for CHAMPUS beneficiaries participating in FDA approved 
clinical trials. Coverage of any such Category B device is dependent on 
its meeting all other requirements of the laws and rules governing 
CHAMPUS and upon the beneficiary involved meeting the FDA-approved IDE 
study protocols.
    (C) Unless reliable evidence shows that any medical treatment or 
procedure has been the subject of well-controlled studies of clinically 
meaningful endpoints, which have determined its maximum tolerated dose, 
its toxicity, its safety, and its efficacy as compared with standard 
means of treatment or diagnosis. (See the definition of reliable 
evidence in Sec. 199.2 of this part for the procedures used in 
determining if a medical treatment or procedure is unproven.)
    (D) If reliable evidence shows that the consensus among experts 
regarding the medical treatment or procedure is that further studies or 
clinical trials are necessary to determine its maximum tolerated doses, 
its toxicity, its safety, or its effectiveness as compared with the 
standard means of treatment or diagnosis (see the definition of reliable 
evidence in Sec. 199.2 for the procedures used in determining if a 
medical treatment or procedure is unproven).
    (ii) CHAMPUS benefits for rare diseases are reviewed on a case-by-
case basis by the Director, Office of CHAMPUS, or a designee. In 
reviewing the case, the Director, or a designee, may consult with any or 
all of the following sources to determine if the proposed therapy is 
considered safe and effective:
    (A) Trials published in refereed medical literature.
    (B) Formal technology assessments.
    (C) National medical policy organization positions.
    (D) National professional associations.
    (E) National expert opinion organizations.

[[Page 141]]

    (iii) Care excluded. This exclusion from benefits includes all 
services directly related to the unproven drug, device, or medical 
treatment or procedure. However, CHAMPUS may cover services or supplies 
when there is no logical or causal relationship between the unproven 
drug, device or medical treatment or procedure and the treatment at 
issue or where such a logical or causal relationship cannot be 
established with a sufficient degree of certainty. This CHAMPUS coverage 
is authorized in the following circumstances:
    (A) Treatment that is not related to the unproven drug, device or 
medical treatment or procedure; e.g., medically necessary in the absence 
of the unproven treatment.
    (B) Treatment which is necessary follow-up to the unproven drug, 
device or medical treatment or procedure but which might have been 
necessary in the absence of the unproven treatment.
    (iv) Examples of unproven drugs, devices or medical treatments or 
procedures. This paragraph (g)(15)(iv) consists of a partial list of 
unproven drugs, devices or medical treatment or procedures. These are 
excluded from CHAMPUS program benefits. This list is not all inclusive. 
Other unproven drugs, devices or medical treatments or procedures, are 
similarly excluded, although they do not appear on this partial list. 
This partial list will be reviewed and updated periodically as new 
information becomes available. With respect to any procedure included on 
this partial list, if and when the Director, OCHAMPUS determines that 
based on reliable evidence (as defined in section 199.2) such procedure 
has proven medical effectiveness, the Director will initiate action to 
remove the procedure from this partial list of unproven drugs, devices 
or medical treatment or procedures. From the date established by the 
Director as the date the procedure has established proven medical 
effectiveness until the date the regulatory change is made to remove the 
procedures from the partial list of unproven drugs, devices or medical 
treatment or procedures the Director, OCHAMPUS will suspend treatment of 
the procedure as unproven drugs, devices, or medical treatments or 
procedures. Following is the non-inclusive, partial list of unproven 
drugs, devices or medical treatment or procedures, all of which are 
excluded from CHAMPUS benefits:
    (A) Radial keratotomy (refractive keratoplasty).
    (B) Cellular therapy.
    (C) Histamine therapy.
    (D) Stem cell assay, a laboratory procedure which allows a 
determination to be made of the type and dose of cancer chemotherapy 
drugs to be used, based on in vitro analysis of their effects on cancer 
cells taken from an individual.
    (E) Topical application of oxygen.
    (F) Immunotherapy for malignant disease, except when using drugs 
approved by the FDA for this purpose.
    (G) Prolotherapy, joint sclerotherapy, and ligamentous injections 
with sclerosing agents.
    (H) Transcervical block silicone plug.
    (I) Whole body hyperthermia in the treatment of cancer.
    (J) Portable nocturnal hypoglycemia detectors.
    (K) Testosterone pellet implants in the treatment of females.
    (L) Estradiol pellet implants.
    (M) Epikeratophakia for treatment of aphakia and myopia.
    (N) Bladder stimulators.
    (O) Ligament replacement with absorbable copolymer carbon fiber 
scaffold.
    (P) Intraoperative radiation therapy.
    (Q) Gastric bubble or balloon.
    (R) Dorsal root entry zone (DREZ) thermocoagulation or 
micorcoagulation neurosurgical procedure.
    (S) Brain electrical activity mapping (BEAM).
    (T) Topographic brain mapping (TBM) procedure.
    (U) Ambulatory blood pressure monitoring.
    (V) Bilateral carotoid body resection to relieve pulmonary system.
    (W) Intracavitary administration of cisplatin for malignant disease.
    (X) Cervicography.
    (Y) In-home uterine activity monitoring for the purpose of 
preventing preterm labor and/or delivery.
    (Z) Sperm evaluation, hamster penetration test.
    (AA) Transfer factor (TF).

[[Page 142]]

    (BB) Continuous ambulatory esophageal pH monitoring (CAEpHM) is 
considered unproven for patients under age 12 for all indications, and 
for patients over age 12 for sleep apnea.
    (CC) Adrenal-to-brain transplantation for Parkinson's disease.
    (DD) Videofluoroscopy evaluation in speech pathology.
    (EE) Applied kinesiology.
    (FF) Hair analysis to identify mineral deficiencies from the 
chemical composition of the hair. Hair analysis testing may be 
reimbursed when necessary to determine lead poisoning.
    (GG) Iridology (links flaws in eye coloration with disease elsewhere 
in the body).
    (HH) Small intestinal bypass (jejunoileal bypass) for treatment of 
morbid obesity.
    (II) Biliopancreatic bypass.
    (JJ) Gastric wrapping/gastric banding.
    (KK) Calcium EAP/calcium orotate and selenium (also known as Nieper 
therapy)--Involves inpatient care and use of calcium compounds and other 
non-FDA approved drugs and special diets. Used for cancer, heart 
disease, diabetes, and multiple sclerosis.
    (LL) Percutaneous balloon valvuloplasty for mitral and tricuspid 
valve stenosis.
    (MM) Amniocentesis performed for ISO immunization to the ABO blood 
antigens.
    (NN) Balloon dilatation of the prostate.
    (OO) Helium in radiosurgery.
    (PP) Electrostimulation of salivary production in the treatment of 
xerostomia secondary to Sjogren's syndrome.
    (QQ) Intraoperative monitoring of sensory evoked potentials (SEP). 
To include visually evoked potentials, brainstem auditory evoked 
response, somatosensory evoked potentials during spinal and orthopedic 
surgery, and sensory evoked potentials monitoring of the sciatic nerve 
during total hip replacement. Recording SEPs in unconscious head injured 
patients to assess the status of the somatosensory system. The use of 
SEPs to define conceptional or gestational age in preterm infants.
    (RR) Autolymphocyte therapy (ALT) (immunotherapy used for treating 
metastatic kidney cancer patients).
    (SS) Radioimmunoguided surgery in the detection of cancer.
    (TT) Gait analysis (also known as a walk study or electrodynogram)
    (UU) Use of cerebellar stimulators/pacemakers for the treatment of 
neurologic disorders.
    (VV) Signal-averaged ECG.
    (WW) Peri-urethal Teflon injections to manage urinary incontinence.
    (XX) Extraoperative electrocorticography for stimulation and 
recording
    (YY) Quantitative computed tomography (QCT) for the detection and 
monitoring of osteoporosis.
    (ZZ) [Reserved]
    (AAA) Percutaneous transluminal angioplasty in the treatment of 
obstructive lesions of the carotoid, vertebral and cerebral arteries.
    (BBB) Endoscopic third ventriculostomy.
    (CCC) Holding therapy--Involves holding the patient in an attempt to 
achieve interpersonal contact, and to improve the patient's ability to 
concentrate on learning tasks.
    (DDD) In utero fetal surgery.
    (EEE) Light therapy for seasonal depression (also known as seasonal 
affective disorder (SAD)).
    (FFF) Dorsal column and deep brain electrical stimulation of 
treatment of motor function disorder.
    (GGG) Chelation therapy, except with products and for indications 
approved by the FDA.
    (HHH) All organ transplants except heart, heart-lung, lung, kidney, 
some bone marrow, liver, liver-kidney, corneal, heart-valve, and kidney-
pancreas transplants for Type I diabetics with chronic renal failure who 
require kidney transplants.
    (III) Implantable infusion pumps, except for treatment of 
spasticity, chronic intractable pain, and hepatic artery perfusion 
chemotherapy for the treatment of primary liver cancer or metastic 
colorectal liver cancer.
    (JJJ) Services related to the candidiasis hypersensitivity syndrome, 
yeast syndrome, or gastrointestinal candidiasis (i.e., allergenic 
extracts of

[[Page 143]]

Candida albicans for immunotherapy and/or provocation/neutralization).
    (KKK) Treatment of chronic fatigue syndrome.
    (LLL) Extracorporeal immunoadsorption using protein A columns for 
conditions other than acute idopathic thrombocytopenia purpura.
    (MMM) Dynamic posturography (both static and computerized).
    (NNN) Laparoscopic myomectomy.
    (OOO) Growth factor, including platelet-derived growth factors, for 
treating non-healing wounds. This includes Procurene [reg], a 
platelet-derived wound-healing formula.
    (PPP) High dose chemotherapy with stem cell rescue (HDC/SCR) for any 
of the following malignancies:
    (1) Breast cancer, except for metastic breast cancer that has 
relapsed after responding to a first line treatment.
    (2) Ovarian cancer.
    (3) Testicular cancer.
    (16) Immediate family, household. Services or supplies provided or 
prescribed by a member of the beneficiary's immediate family, or a 
person living in the beneficiary's or sponsor's household.
    (17) Double coverage. Services and supplies that are (or are 
eligible to be) payable under another medical insurance or program, 
either private or governmental, such as coverage through employment or 
Medicare (refer to Sec. 199.8 of this part).
    (18) Nonavailability Statement required. Services and supplies 
provided under circumstances or in geographic locations requiring a 
Nonavailability Statement (DD Form 1251), when such a statement was not 
obtained.
    (19) Preauthorization required. Services or supplies which require 
preauthorization if preauthorization was not obtained. Services and 
supplies which were not provided according to the terms of the 
preauthorization. The Director, OCHAMPUS, or a designee, may grant an 
exception to the requirement for preauthorization if the services 
otherwise would be payable except for the failure to obtain 
preauthorization.
    (20) Psychoanalysis or psychotherapy, part of education. 
Psychoanalysis or psychotherapy provided to a beneficiary or any member 
of the immediate family that is credited towards earning a degree or 
furtherance of the education or training of a beneficiary or sponsor, 
regardless of diagnosis or symptoms that may be present.
    (21) Runaways. Inpatient stays primarily to control or detain a 
runaway child, whether or not admission is to an authorized institution.
    (22) Services or supplies ordered by a court or other government 
agency. Services or supplies, including inpatient stays, directed or 
agreed to by a court or other governmental agency. However, those 
services and supplies (including inpatient stays) that otherwise are 
medically or psychologically necessary for the diagnosis or treatment of 
a covered condition and that otherwise meet all CHAMPUS requirements for 
coverage are not excluded.
    (23) Work-related (occupational) disease or injury. Services and 
supplies required as a result of occupational disease or injury for 
which any benefits are payable under a worker's compensation or similar 
law, whether or not such benefits have been applied for or paid; except 
if benefits provided under such laws are exhausted.
    (24) Cosmetic, reconstructive, or plastic surgery. Services and 
supplies in connection with cosmetic, reconstructive, or plastic surgery 
except as specifically provided in paragraph (e)(8) of this section.
    (25) Surgery, psychological reasons. Surgery performed primarily for 
psychological reasons (such as psychogenic).
    (26) Electrolysis.
    (27) Dental care. Dental care or oral surgery, except as 
specifically provided in paragraph (e)(10) of this section.
    (28) Obesity, weight reduction. Services and supplies related to 
obesity or weight reduction whether surgical or nonsurgical; wiring of 
the jaw or any procedure of similar purpose, regardless of the 
circumstances under which performed; except that benefits may be 
provided for the gastric bypass, gastric stapling, or gastroplasty 
procedures in connection with morbid obesity as provided in paragraph 
(e)(15) of this section.
    (29) Transsexualism or such other conditions as gender dysphoria. 
Services and supplies related to transsexualism or

[[Page 144]]

such other conditions as gender dysphoria (including, but not limited, 
to intersex surgery, psychotherapy, and prescription drugs), except as 
specifically provided in paragraph (e)(7) of this section.
    (30) Therapy or counseling for sexual dysfunctions or sexual 
inadequacies. Sex therapy, sexual advice, sexual counseling, sex 
behavior modification, psychotherapy for mental disorders involving 
sexual deviations (i.e., transvestic fetishm), or other similar 
services, and any supplies provided in connection with therapy for 
sexual dysfunctions or inadequacies.
    (31) Corns, calluses, and toenails. Removal of corns or calluses or 
trimming of toenails and other routine podiatry services, except those 
required as a result of a diagnosed systemic medical disease affecting 
the lower limbs, such as severe diabetes.
    (32) Dyslexia.
    (33) Surgical sterilization, reversal. Surgery to reverse surgical 
sterilization procedures.
    (34) Noncoital reproductive procedures including artifical 
insemination, in-vitro fertilization, gamete intrafallopian transfer and 
all other such reproductive technologies. Services and supplies related 
to artificial insemination (including semen donors and semen banks), in-
vitro fertilization, gamete intrafallopian transfer and all other 
noncoital reproductive technologies.
    (35) Nonprescription contraceptives.
    (36) Tests to determine paternity or sex of a child. Diagnostic 
tests to establish paternity of a child; or tests to determine sex of an 
unborn child.
    (37) Preventive care. Preventive care, such as routine, annual, or 
employment-requested physical examinations; routine screening 
procedures; except that the following are not excluded:
    (i) Well-child care.
    (ii) Immunizations for individuals age six and older, as recommended 
by the CDC.
    (iii) Rabies shots.
    (iv) Tetanus shot following an accidental injury.
    (v) Rh immune globulin.
    (vi) Genetic tests as specified in paragraph (e)(3)(ii) of this 
section.
    (vii) Immunizations and physical examinations provided when required 
in the case of dependents of active duty military personnel who are 
traveling outside the United States as a result of an active duty 
member's assignment and such travel is being performed under orders 
issued by a Uniformed Service.
    (viii) Screening mammography for asymptomatic women 40 years of age 
and older, and for high risk women 35 years of age and older, when 
provided under the terms and conditions contained in the guidelines 
adopted by the Deputy Assistant Secretary of Defense, Health Services 
Financing.
    (ix) Cancer screening Papanicolaou (PAP) test for women who are at 
risk for sexually transmissible diseases, women who have or have had 
multiple sexual partners (or if their partner has or has had multiple 
sexual partners), women who smoke cigarettes, and women 18 years of age 
and older when provided under the terms and conditions contained in the 
guidelines adopted by the Deputy Assistant Secretary of Defense, Health 
Services Financing.
    (x) Other cancer screenings authorized by 10 U.S.C. 1079.
    (xi) Health promotion and disease prevention visits (which may 
include all of the services provided pursuant to Sec. 199.18(b)(2)) may 
be provided in connection with immunizations and cancer screening 
examinations authorized by paragraphs (g)(37)(ii) of this section or 
(g)(37)(viii) through (x) of this section.
    (xii) Physical examinations for beneficiaries ages 5 through 11 that 
are required in connection with school enrollment, and that are provided 
on or after October 30, 2000.
    (38) Chiropractors and naturopaths. Services of chiropractors and 
naturopaths whether or not such services would be eligible for benefits 
if rendered by an authorized provider.
    (39) Counseling. Counseling services that are not medically 
necessary in the treatment of a diagnosed medical condition: For 
example, educational counseling, vocational counseling, nutritional 
counseling, and counseling for socioeconomic purposes, diabetic self-
education programs, stress management, lifestyle modification, etc. 
Services provided by a certified marriage

[[Page 145]]

and family therapist, pastoral or mental health counselor in the 
treatment of a mental disorder are covered only as specifically provided 
in Sec. 199.6. Services provided by alcoholism rehabilitation 
counselors are covered only when rendered in a CHAMPUS-authorized 
treatment setting and only when the cost of those services is included 
in the facility's CHAMPUS-determined allowable cost rate.
    (40) Acupuncture. Acupuncture, whether used as a therapeutic agent 
or as an anesthetic.
    (41) Hair transplants, wigs/hair pieces/cranial prosthesis.
    Note: In accordance with section 744 of the DoD Appropriation Act 
for 1981 (Pub. L. 96-527), CHAMPUS coverage for wigs or hairpieces is 
permitted effective December 15, 1980, under the conditions listed 
below. Continued availability of benefits will depend on the language of 
the annual DoD Appropriation Acts.
    (i) Benefits provided. Benefits may be extended, in accordance with 
the CHAMPUS-determined allowable charge, for one wig or hairpiece per 
beneficiary (lifetime maximum) when the attending physician certifies 
that alopecia has resulted from treatment of a malignant disease and the 
beneficiary certifies that a wig or hairpiece has not been obtained 
previously through the U.S. Government (including the Veterans 
Administration).
    (ii) Exclusions. The wig or hairpiece benefit does not include 
coverage for the following:
    (A) Alopecia resulting from conditions other than treatment of 
malignant disease.
    (B) Maintenance, wig or hairpiece supplies, or replacement of the 
wig or hairpiece.
    (C) Hair transplants or any other surgical procedure involving the 
attachment of hair or a wig or hairpiece to the scalp.
    (D) Any diagnostic or therapeutic method or supply intended to 
encourage hair regrowth.
    (42) Education or training. Self-help, academic education or 
vocational training services and supplies, unless the provisions of 
Sec. 199.4, paragraph (b)(1)(v) relating to general or special 
education, apply.
    (43) Exercise/relaxation/comfort devices. Exercise equipment, spas, 
whirlpools, hot tubs, swimming pools, health club membership or other 
such charges or items.
    (44) Exercise. General exercise programs, even if recommended by a 
physician and regardless of whether or not rendered by an authorized 
provider. In addition, passive exercises and range of motion exercises 
also are excluded, except when prescribed by a physician and rendered by 
a physical therapist concurrent to, and as an integral part of, a 
comprehensive program of physical therapy.
    (45) [Reserved]
    (46) Vision care. Eye exercises or visual training (orthoptics).
    (47) Eye and hearing examinations. Eye and hearing examinations 
except as specifically provided in paragraphs (c)(2)(xvi), (c)(3)(xi), 
and (e)(24) of this section, or except when rendered in connection with 
medical or surgical treatment of a covered illness or injury.
    (48) Prosthetic devices. Prostheses other than those determined by 
the Director, OCHAMPUS to be necessary because of significant conditions 
resulting from trauma, congenital anomalies, or disease. All dental 
prostheses are excluded, except for those specifically required in 
connection with otherwise covered orthodontia directly related to the 
surgical correction of a cleft palate anomaly.
    (49) Orthopedic shoes. Orthopedic shoes, arch supports, shoe 
inserts, and other supportive devices for the feet, including special-
ordered, custom-made built-up shoes, or regular shoes later built up.
    (50) Eyeglasses. Eyeglasses, spectacles, contact lenses, or other 
optical devices, except as specifically provided under paragraph (e)(6) 
of this section.
    (51) Hearing aids. Hearing aids or other auditory sensory enhancing 
devices, except those allowed in paragraph (e)(24) of this section.
    (52) Telephone services. Services or advice rendered by telephone 
are excluded, except that a diagnostic or monitoring procedure which 
incorporates electronic transmission of data or remote detection and 
measurement of a condition, activity, or function (biotelemetry) is not 
excluded when:

[[Page 146]]

    (i) The procedure without electronic transmission of data or 
biotelemetry is otherwise an explicit or derived benefit of this 
section; and
    (ii) The addition of electronic transmission of data or biotelemetry 
to the procedure is found by the Director, CHAMPUS, or designee, to be 
medically necessary and appropriate medical care which usually improves 
the efficiency of the management of a clinical condition in defined 
circumstances; and
    (iii) That each data transmission or biotelemetry device 
incorporated into a procedure that is otherwise an explicit or derived 
benefit of this section, has been classified by the U.S. Food and Drug 
Administration, either separately or as a part of a system, for use 
consistent with the defined circumstances in paragraph (g)(52)(ii) of 
this section.
    (53) Air conditioners, humidifiers, dehumidifiers, and purifiers.
    (54) Elevators or chair lifts.
    (55) Alterations. Alterations to living spaces or permanent features 
attached thereto, even when necessary to accommodate installation of 
covered durable medical equipment or to facilitate entrance or exit.
    (56) Clothing. Items of clothing or shoes, even if required by 
virtue of an allergy (such as cotton fabric as against synthetic fabric 
and vegetable-dyed shoes).
    (57) Food, food substitutes. Food, food substitutes, vitamins, or 
other nutritional supplements, including those related to prenatal care.
    (58) Enuretic. Enuretic conditioning programs, but enuretic alarms 
may be cost-shared when determined to be medically necessary in the 
treatment of enuresis.
    (59) Duplicate equipment. As defined in Sec. 199.2, duplicate 
equipment is excluded.
    (60) Autopsy and postmortem.
    (61) Camping. All camping even though organized for a specific 
therapeutic purpose (such as diabetic camp or a camp for emotionally 
disturbed children), and even though offered as a part of an otherwise 
covered treatment plan or offered through a CHAMPUS-approved facility.
    (62) Housekeeper, companion. Housekeeping, homemaker, or attendant 
services; sitter or companion.
    (63) Noncovered condition, unauthorized provider. All services and 
supplies (including inpatient institutional costs) related to a 
noncovered condition or treatment, or provided by an unauthorized 
provider.
    (64) Comfort or convenience. Personal, comfort, or convenience items 
such as beauty and barber services, radio, television, and telephone.
    (65) ``Stop smoking'' programs. Services and supplies related to 
``stop smoking'' regimens.
    (66) Megavitamin psychiatric therapy, orthomolecular psychiatric 
therapy.
    (67) Transportation. All transportation except by ambulance, as 
specifically provided under paragraph (d), and except as authorized in 
paragraph (e)(5) of this section.
    (68) Travel. All travel even though prescribed by a physician and 
even if its purpose is to obtain medical care, except as specified in 
paragraph (a)(6) of this section in connection with a CHAMPUS-required 
physical examination and as specified in Sec. 199.17(n)(2)(vi).
    (69) Institutions. Services and supplies provided by other than a 
hospital, unless the institution has been approved specifically by 
OCHAMPUS. Nursing homes, intermediate care facilities, halfway houses, 
homes for the aged, or institutions of similar purpose are excluded from 
consideration as approved facilities under the Basic Program.
    Note: In order to be approved under CHAMPUS, an institution must, in 
addition to meeting CHAMPUS standards, provide a level of care for which 
CHAMPUS benefits are payable.
    (70)-(71) [Reserved]
    (72) Inpatient mental health services. Effective for care received 
on or after October 1, 1991, services in excess of 30 days in any fiscal 
year (or in an admission), in the case of a patient nineteen years of 
age or older, 45 days in any fiscal year (or in an admission) in the 
case of a patient under 19 years of age, or 150 days in any fiscal year 
(or in an admission) in the case of inpatient mental health services 
provided as residential treatment care, unless coverage for such 
services is granted by a waiver by the Director, OCHAMPUS, or a 
designee. In cases involving the day

[[Page 147]]

limitations, waivers shall be handled in accordance with paragraphs 
(b)(8) or (b)(9) of this section. For services prior to October 1, 1991, 
services in excess of 60 days in any calendar year unless additional 
coverage is granted by the Director, OCHAMPUS, or a designee.
    (73) Economic interest in connection with mental health admissions. 
Inpatient mental health services (including both acute care and RTC 
services) are excluded for care received when a patient is referred to a 
provider of such services by a physician (or other health care 
professional with authority to admit) who has an economic interest in 
the facility to which the patient is referred, unless a waiver is 
granted. Requests for waiver shall be considered under the same 
procedure and based on the same criteria as used for obtaining 
preadmission authorization (or continued stay authorization for 
emergency admissions), with the only additional requirement being that 
the economic interest be disclosed as part of the request. The same 
reconsideration and appeals procedures that apply to day limit waivers 
shall also apply to decisions regarding requested waivers of the 
economic interest exclusion. However, a provider may appeal a 
reconsidered determination that an economic relationship constitutes an 
economic interest within the scope of the exclusion to the same extent 
that a provider may appeal determination under Sec. 199.15(i)(3). This 
exclusion does not apply to services under the Extended Care Health 
Option (ECHO) in Sec. 199.5 or provided as partial hospital care. If a 
situation arises where a decision is made to exclude CHAMPUS payment 
solely on the basis of the provider's economic interest, the normal 
CHAMPUS appeals process will be available.
    (74) Not specifically listed. Services and supplies not specifically 
listed as a benefit in this part. This exclusion is not intended to 
preclude extending benefits for those services or supplies specifically 
determined to be covered within the intent of this part by the Director, 
OCHAMPUS, or a designee, even though not otherwise listed.
    Note: The fact that a physician may prescribe, order, recommend, or 
approve a service or supply does not, of itself, make it medically 
necessary or make the charge an allowable expense, even though it is not 
listed specifically as an exclusion.
    (h) Payment and liability for certain potentially excludable 
services under the Peer Review Organization program--(1) Applicability. 
This subsection provides special rules that apply only to services 
retrospectively determined under the Peer Review organization (PRO) 
program (operated pursuant to Sec. 199.15) to be potentially excludable 
(in whole or in part) from the basic program under paragraph (g) of this 
section. Services may be excluded by reason of being not medically 
necessary (paragraph (g)(1) of this section), at an inappropriate level 
(paragraph (g)(3) of this section), custodial care (paragraph (g)(7) of 
this section) or other reason relative to reasonableness, necessity or 
appropriateness (which services shall throughout the remainder of this 
subsection, be referred to as ``not medically necessary''). (Also 
throughout the remainder of the subsection, ``services'' includes items 
and ``provider'' includes supplier). This paragraph does not apply to 
coverage determinations made by OCHAMPUS or the fiscal intermediaries 
which are not based on medical necessity determinations made under the 
PRO program.
    (2) Payment for certain potentially excludable expenses. Services 
determined under the PRO program to be potentially excludable by reason 
of the exclusions in paragraph (g) of this section for not medically 
necessary services will not be determined to be excludable if neither 
the beneficiary to whom the services were provided nor the provider 
(institutional or individual) who furnished the services knew, or could 
reasonably have been expected to know, that the services were subject to 
those exclusions. Payment may be made for such services as if the 
exclusions did not apply.
    (3) Liability for certain excludable services. In any case in which 
items or services are determined excludable by the PRO program by reason 
of being not medically necessary and payment may not be made under 
paragraph (h)(2) of this section because the requirements of paragraph 
(h)(2) of this section are not met, the beneficiary may not be held 
liable (and shall be entitled to a full refund from the provider of the

[[Page 148]]

amount excluded and any cost share amount already paid) if:
    (i) The beneficiary did not know and could not reasonably have been 
expected to know that the services were excludable by reason of being 
not medically necessary; and
    (ii) The provider knew or could reasonably have been expected to 
know that the items or services were excludable by reason of being not 
medically necessary.
    (4) Criteria for determining that beneficiary knew or could 
reasonably have been expected to have known that services were 
excludable. A beneficiary who receives services excludable by reason of 
being not medically necessary will be found to have known that the 
services were excludable if the beneficiary has been given written 
notice that the services were excludable or that similar or comparable 
services provided on a previous occasion were excludable and that notice 
was given by the OCHAMPUS, CHAMPUS PRO or fiscal intermediary, a group 
or committee responsible for utilization review for the provider, or the 
provider who provided the services.
    (5) Criteria for determining that provider knew or could reasonably 
have been expected to have known that services were excludable. An 
institutional or individual provider will be found to have known or been 
reasonably expected to have known that services were excludable under 
this subsection under any one of the following circumstances:
    (i) The PRO or fiscal intermediary had informed the provider that 
the services provided were excludable or that similar or reasonably 
comparable services were excludable.
    (ii) The utilization review group or committee for an institutional 
provider or the beneficiary's attending physician had informed the 
provider that the services provided were excludable.
    (iii) The provider had informed the beneficiary that the services 
were excludable.
    (iv) The provider had received written materials, including notices, 
manual issuances, bulletins, guides, directives or other materials, 
providing notification of PRO screening criteria specific to the 
condition of the beneficiary. Attending physicians who are members of 
the medical staff of an institutional provider will be found to have 
also received written materials provided to the institutional provider.
    (v) The services that are at issue are the subject of what are 
generally considered acceptable standards of practice by the local 
medical community.
    (vi) Preadmission authorization was available but not requested, or 
concurrent review requirements were not followed.

[51 FR 24008, July 1, 1986]

    Editorial Notes: For Federal Register citations affecting Sec. 
199.4, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 199.5  TRICARE Extended Care Health Option (ECHO).

    (a) General. (1) The TRICARE ECHO is essentially a supplemental 
program to the TRICARE Basic Program. It does not provide acute care nor 
benefits available through the TRICARE Basic Program.
    (2) The purpose of the ECHO is to provide an additional financial 
resource for an integrated set of services and supplies designed to 
assist in the reduction of the disabling effects of the beneficiary's 
qualifying condition. Services include those necessary to maintain, 
minimize or prevent deterioration of function of an ECHO-eligible 
beneficiary.
    (b) Eligibility. (1) The following categories of TRICARE/CHAMPUS 
beneficiaries with a qualifying condition are eligible for ECHO 
benefits:
    (i) A child or spouse (as described in 10 U.S.C. 1072(2)(A), (D), or 
(I)) of a member of one of the Uniformed Services; or
    (ii) An abused dependent as described in Sec. 199.3(b)(2)(iii); or
    (iii) A child or spouse (as described in 10 U.S.C. 1072(2)(A), (D), 
or (I)) of a member of one of the Uniformed Services who dies while on 
active duty. In such case the child or spouse remain eligible for 
benefits under the ECHO for a period of three years from the date the 
active duty sponsor dies; or
    (iv) A child or spouse (as described in 10 U.S.C. 1072(2)(A), (D), 
or (I)) of a deceased member of one of the Uniformed

[[Page 149]]

Services, who, at the time of the member's death was receiving benefits 
under ECHO, and the member at the time of death was eligible for receipt 
of hostile-fire pay, or died as a result of a disease or injury incurred 
while eligible for such pay. In such case the child or spouse remain 
eligible through midnight of the beneficiary's twenty-first birthday.
    (2) Qualifying condition. The following are qualifying conditions:
    (i) Mental retardation. A diagnosis of moderate or severe mental 
retardation made in accordance with the criteria of the current edition 
of the ``Diagnostic and Statistical Manual of Mental Disorders'' 
published by the American Psychiatric Association.
    (ii) Serious physical disability. A serious physical disability as 
defined in Sec. 199.2.
    (iii) Extraordinary physical or psychological condition. An 
extraordinary physical or psychological condition as defined in Sec. 
199.2.
    (iv) Infant/toddler. Beneficiaries under the age of 3 years who are 
diagnosed with a neuromuscular developmental condition or other 
condition that is expected to precede a diagnosis of moderate or severe 
mental retardation or a serious physical disability, shall be deemed to 
have a qualifying condition for the ECHO. The Director, TRICARE 
Management Activity or designee shall establish criteria for ECHO 
eligibility in lieu of the requirements of paragraphs (b)(2)(i), (ii) or 
(iii) of this section.
    (v) Multiple disabilities. The cumulative effect of multiple 
disabilities, as determined by the Director, TRICARE Management Activity 
or designee shall be used in lieu of the requirements of paragraphs 
(b)(2)(i), (ii) or (iii) of this section to determine a qualifying 
condition when the beneficiary has two or more disabilities involving 
separate body systems.
    (3) Loss of ECHO eligibility. Eligibility for ECHO benefits ceases 
as of 12:01 a.m. of the day following the day that:
    (i) The sponsor ceases to be an active duty member for any reason 
other than death; or
    (ii) Eligibility based upon the abused dependent provisions of 
paragraph (b)(1)(ii) of this section expires; or
    (iii) Eligibility based upon the deceased sponsor provisions of 
paragraphs (b)(1)(iii) or (iv) of this section expires; or
    (iv) Eligibility based upon a beneficiary's participation in the 
Transitional Assistance Management Program ends; or
    (v) The Director, TRICARE Management Activity or designee determines 
that the beneficiary no longer has a qualifying condition.
    (4) Continuity of eligibility. A TRICARE beneficiary who has an 
outstanding Program for Persons with Disabilities (PFPWD) benefit 
authorization on the date of implementation of the ECHO program shall 
continue receiving such services for the duration of that authorization 
period provided the beneficiary remains eligible for the PFPWD. Upon 
termination of an existing PFPWD authorization, of if the beneficiary 
seeks benefits under this section before such termination, the 
beneficiary shall establish eligibility for the ECHO in accordance with 
this section.
    (c) ECHO benefit. Items and services that the Director, TRICARE 
Management Activity or designee has determined are capable of 
confirming, arresting, or reducing the severity of the disabling effects 
of a qualifying condition, includes, but are not limited to:
    (1) Diagnostic procedures to establish a qualifying condition or to 
measure the extent of functional loss resulting from a qualifying 
condition.
    (2) Medical, habilitative, rehabilitative services and supplies, 
durable equipment that is related to the qualifying condition. Benefits 
may be provided in the beneficiary's home or other environment as 
appropriate.
    (3) Training that teaches the use of assistive technology devices or 
to acquire skills that are necessary for the management of the 
qualifying condition. Such training is also authorized for the 
beneficiary's immediate family. Vocational training, in the 
beneficiary's home or a facility providing such, is also allowed.
    (4) Special education as provided by the Individuals with 
Disabilities Education Act and defined at 34 CFR 300.26

[[Page 150]]

and that is specifically designed to accommodate the disabling effects 
of the qualifying condition.
    (5) Institutional care within a state, as defined in Sec. 199.2, in 
private nonprofit, public, and state institutions and facilities, when 
the severity of the qualifying condition requires protective custody or 
training in a residential environment. For the purpose of this section 
protective custody means residential care that is necessary when the 
severity of the qualifying condition is such that the safety and well-
being of the beneficiary or those who come into contact with the 
beneficiary may be in jeopardy without such care.
    (6) Transportation of an ECHO beneficiary, and a medical attendant 
when necessary to assure the beneficiary's safety, to or from a facility 
or institution to receive authorized ECHO services or items.
    (7) Respite care. ECHO beneficiaries are eligible for 16 hours of 
respite care per month in any month during which the beneficiary 
otherwise receives an ECHO benefit(s). Respite care is defined in Sec. 
199.2. Respite care services will be provided by a TRICARE-authorized 
home health agency and will be designed to provide health care services 
for the covered beneficiary, and not baby-sitting or child-care services 
for other members of the family. The benefit will not be cumulative, 
that is, any respite care hours not used in one month will not be 
carried over or banked for use on another occasion.
    (i) TRICARE-authorized home health agencies must provide and bill 
for all authorized ECHO respite care services through established 
TRICARE claims' mechanisms. No special billing arrangements will be 
authorized in conjunction with coverage that may be provided by Medicaid 
or other federal, state, community or private programs.
    (ii) For authorized ECHO respite care, TRICARE will reimburse the 
allowable charges or negotiated rates.
    (iii) The Government's cost-share incurred for these services accrue 
to the maximum monthly benefits of $2,500.
    (8) Other services. (i) Assistive services. Services of qualified 
personal assistants, such as an interpreter or translator for ECHO 
beneficiaries who are deaf or mute and readers for ECHO beneficiaries 
who are blind, when such services are necessary in order for the ECHO 
beneficiary to receive authorized ECHO benefits.
    (ii) Equipment adaptation. The allowable equipment purchase shall 
include such services and modifications to the equipment as necessary to 
make the equipment useable for a particular ECHO beneficiary.
    (iii) Equipment maintenance. Reasonable repairs and maintenance of 
beneficiary owned or rented durable equipment provided by this section 
shall be allowed while a beneficiary is registered in the ECHO.
    (d) ECHO Exclusions--(1) Basic Program. Benefits allowed under the 
TRICARE Basic Program will not be provided through the ECHO.
    (2) Inpatient care. Inpatient acute care for medical or surgical 
treatment of an acute illness, or of an acute exacerbation of the 
qualifying condition, is excluded.
    (3) Structural alterations. Alterations to living space and 
permanent fixtures attached thereto, including alterations necessary to 
accommodate installation of equipment or to facilitate entrance or exit, 
are excluded.
    (4) Homemaker services. Services that predominantly provide 
assistance with household chores are excluded.
    (5) Dental care or orthodontic treatment. Both are excluded.
    (6) Deluxe travel or accommodations. The difference between the 
price for travel or accommodations that provide services or features 
that exceed the requirements of the beneficiary's condition and the 
price for travel or accommodations without those services or features is 
excluded.
    (7) Equipment. Purchase or rental of durable equipment that is 
otherwise allowed by this section is excluded when:
    (i) The beneficiary is a patient in an institution or facility that 
ordinarily provides the same type of equipment to its patients at no 
additional charge in the usual course of providing services; or
    (ii) The item is available to the beneficiary from a Uniformed 
Services Medical Treatment Facility; or
    (iii) The item has deluxe, luxury, immaterial or nonessential 
features that increase the cost to the Department

[[Page 151]]

relative to a similar item without those features; or
    (iv) The item is duplicate equipment as defined in Sec. 199.2.
    (8) Maintenance agreements. Maintenance agreements for beneficiary 
owned or rented equipment are excluded.
    (9) No obligation to pay. Services or items for which the 
beneficiary or sponsor has no legal obligation to pay are excluded.
    (10) Public facility or Federal government. Services or items paid 
for, or eligible for payment, directly or indirectly by a public 
facility, as defined in Sec. 199.2, or by the Federal government, other 
than the Department of Defense, are excluded for training, 
rehabilitation, special education, assistive technology devices, 
institutional care in private nonprofit, public, and state institutions 
and facilities, and if appropriate, transportation to and from such 
institutions and facilities, except when such services or items are 
eligible for payment under a state plan for medical assistance under 
Title XIX of the Social Security Act (Medicaid). Rehabilitation and 
assistive technology services or supplies may be available under the 
TRICARE Basic Program.
    (11) Study, grant, or research programs. Services and items provided 
as a part of a scientific clinical study, grant, or research program are 
excluded.
    (12) Unproven status. Drugs, devices, medical treatments, 
diagnostic, and therapeutic procedures for which the safety and efficacy 
have not been established in accordance with Sec. 199.4 are excluded.
    (13) Immediate family or household. Services or items provided or 
prescribed by a member of the beneficiary's immediate family, or a 
person living in the beneficiary's or sponsor's household, are excluded.
    (14) Court or agency ordered care. Services or items ordered by a 
court or other government agency, which are not otherwise an allowable 
ECHO benefit, are excluded.
    (15) Excursions. Excursions are excluded regardless of whether or 
not they are part of a program offered by a TRICARE-authorized provider. 
The transportation benefit available under ECHO is specified elsewhere 
in this section.
    (16) Drugs and medicines. Drugs and medicines that do not meet the 
requirements of Sec. 199.4 or Sec. 199.21 are excluded.
    (17) Therapeutic absences. Therapeutic absences from an inpatient 
facility or from home for a homebound beneficiary are excluded.
    (18) Custodial care. Custodial care, as defined in Sec. 199.2 is 
not a stand-alone benefit. Services generally rendered as custodial care 
may be provided only as specifically set out in this section.
    (19) Domiciliary care. Domiciliary care, as defined in Sec. 199.2, 
is excluded.
    (20) Respite care. Respite care for the purpose of covering primary 
caregiver (as defined in Sec. 199.2) absences due to deployment, 
employment, seeking of employment or to pursue education is excluded. 
Authorized respite care covers only the ECHO beneficiary, not siblings 
or others who may reside in or be visiting in the beneficiary's 
residence.
    (e) ECHO Home Health Care (EHHC). The EHHC benefit provides coverage 
of home health care services and respite care services specified in this 
section.
    (1) Home health care. Covered ECHO home health care services are the 
same as, and provided under the same conditions as those services 
described in Sec. 199.4(e)(21)(i), except that they are not limited to 
part-time or intermittent services. Custodial care services, as defined 
in Sec. 199.2, may be provided to the extent such services are provided 
in conjunction with authorized ECHO home health care services, including 
the EHHC respite care benefit specified in this section. Beneficiaries 
who are authorized EHHC will receive all home health care services under 
EHHC and no portion will be provided under the Basic Program. TRICARE-
authorized home health agencies are not required to use the Outcome and 
Assessment Information Set (OASIS) to assess beneficiaries who are 
authorized EHHC.
    (2) Respite care. EHHC beneficiaries whose plan of care includes 
frequent interventions by the primary caregiver(s) are eligible for 
respite care services in lieu of the ECHO general respite care benefit. 
For the purpose of this section, the term ``frequent'' means ``more than 
two interventions

[[Page 152]]

during the eight-hour period per day that the primary caregiver would 
normally be sleeping.'' The services performed by the primary caregiver 
are those that can be performed safely and effectively by the average 
non-medical person without direct supervision of a health care provider 
after the primary caregiver has been trained by appropriate medical 
personnel. EHHC beneficiaries in this situation are eligible for a 
maximum of eight hours per day, 5 days per week, of respite care by a 
TRICARE-authorized home health agency. The home health agency will 
provide the health care interventions or services for the covered 
beneficiary so that the primary caregiver is relieved of the 
responsibility to provide such interventions or services for the 
duration of that period of respite care. The home health agency will not 
provide baby-sitting or child care services for other members of the 
family. The benefit is not cumulative, that is, any respite care hours 
not used in a given day may not be carried over or banked for use on 
another occasion. Additionally, the eight-hour respite care periods will 
not be provided consecutively, that is, a respite care period on one 
calendar day will not be immediately followed by a respite care period 
the next calendar day. The Government's cost-share incurred for these 
services accrue to the maximum yearly ECHO Home Health Care benefit.
    (3) EHHC eligibility. The EHHC is authorized for beneficiaries who 
meet all applicable ECHO eligibility requirements and who:
    (i) Physically reside within the 50 United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, or Guam; and
    (ii) Are homebound, as defined in Sec. 199.2; and
    (iii) Require medically necessary skilled services that exceed the 
level of coverage provided under the Basic Program's home health care 
benefit; and/or
    (iv) Require frequent interventions by the primary caregiver(s) such 
that respite care services are necessary to allow primary caregiver(s) 
the opportunity to rest; and
    (v) Are case managed to include a reassessment at least every 90 
days, and receive services as outlined in a written plan of care; and
    (vi) Receive all home health care services from a TRICARE-authorized 
home health agency, as described in Sec. 199.6(b)(4)(xv), in the 
beneficiary's primary residence.
    (4) EHHC plan of care. A written plan of care is required prior to 
authorizing ECHO home health care. The plan must include the type, 
frequency, scope and duration of the care to be provided and support the 
professional level of provider. Reimbursement will not be authorized for 
a level of provider not identified in the plan of care.
    (5) EHHC exclusions--(i) General. ECHO Home Health Care services and 
supplies are excluded from those who are being provided continuing 
coverage of home health care as participants of the former Individual 
Case Management Program for Persons with Extraordinary Conditions (ICMP-
PEC) or previous case management demonstrations.
    (ii) Respite care. Respite care for the purpose of covering primary 
caregiver absences due to deployment, employment, seeking of employment 
or to pursue education is excluded. Authorized respite care covers only 
the ECHO beneficiary, not siblings or others who may reside in or be 
visiting in the beneficiary's residence.
    (f) Cost-share liability--(1) No deductible. ECHO benefits are not 
subject to a deductible amount.
    (2) Sponsor cost-share liability. (i) Regardless of the number of 
family members receiving ECHO benefits or ECHO Home Health Care in a 
given month, the sponsor's cost-share is according to the following 
table:

            Table 1--Monthly Cost-Share by Member's Pay Grade
------------------------------------------------------------------------
 
------------------------------------------------------------------------
E-1 through E-5.................................................     $25
E-6.............................................................      30
E-7 and O-1.....................................................      35
E-8 and O-2.....................................................      40
E-9, W-1, W-2 and O-3...........................................      45
W-3, W-4 and O-4................................................      50
W-5 and O-5.....................................................      65
O-6.............................................................      75
O-7.............................................................     100
O-8.............................................................     150
O-9.............................................................     200

[[Page 153]]

 
O-10............................................................     250
------------------------------------------------------------------------

    (ii) The Sponsor's cost-share shown in Table 1 in paragraph 
(f)(2)(i) of this section will be applied to the first allowed ECHO 
charges in any given month. The Government's share will be paid, up to 
the maximum amount specified in paragraph (f)(3) of this section, for 
allowed charges after the sponsor's cost-share has been applied.
    (iii) The provisions of Sec. 199.18(d)(1) and (e)(1) regarding 
elimination of copayments for active duty family members enrolled in 
TRICARE Prime do not eliminate, reduce, or otherwise affect the 
sponsor's cost-share shown in Table 1 in paragraph (f)(2)(i) of this 
section.
    (iv) The sponsor's cost-share shown in Table 1 in paragraph 
(f)(2)(i) of this section does not accrue to the Basic Program's 
Catastrophic Loss Protection under 10 U.S.C. 1079(b)(5) as shown at 
Sec. Sec. 199.4(f)(10) and 199.18(f).
    (3) Government cost-share liability--(i) ECHO. The total Government 
share of the cost of all ECHO benefits, except ECHO home health care 
EHHC respite care, provided in a given month to a beneficiary may not 
exceed $2,500 after application of the allowable payment methodology.
    (ii) ECHO home health care. (A) The maximum annual fiscal year 
Government cost-share per EHHC-eligible beneficiary for ECHO home health 
care, including EHHC respite care may not exceed the local wage-adjusted 
highest Medicare Resource Utilization Group (RUG-III) category cost for 
care in a TRICARE-authorized skilled nursing facility.
    (B) When a beneficiary moves to a different locality within the 50 
United States, the District of Columbia, Puerto Rico, the Virgin 
Islands, or Guam, the annual fiscal year cap will be recalculated to 
reflect the maximum established under paragraph (f)(3)(ii)(A) of this 
section for the beneficiary's new location and will apply to the EHHC 
benefit for the remaining portion of that fiscal year.
    (g) Benefit payment--(1) Transportation. The allowable amount for 
transportation of an ECHO beneficiary is limited to the actual cost of 
the standard published fare plus any standard surcharge made to 
accommodate any person with a similar disability or to the actual cost 
of specialized medical transportation when non-specialized transport 
cannot accommodate the beneficiary's qualifying condition related needs, 
or when specialized transport is more economical than non-specialized 
transport. When transport is by private vehicle, the allowable amount is 
limited to the Federal government employee mileage reimbursement rate in 
effect on the date the transportation is provided.
    (2) Equipment. (i) The TRICARE allowable amount for durable 
equipment shall be calculated in the same manner as durable medical 
equipment allowable through Sec. 199.4.
    (ii) Allocating equipment expense. The ECHO beneficiary (or sponsor 
or guardian acting on the beneficiary's behalf) may, only at the time of 
the request for authorization of equipment, specify how the allowable 
cost of the equipment is to be allocated as an ECHO benefit. The entire 
allowable cost of the authorized equipment may be allocated in the month 
of purchase provided the allowable cost does not exceed the ECHO maximum 
monthly benefit of $2,500 or it may be prorated regardless of the 
allowable cost. Prorating permits the allowable cost of ECHO-authorized 
equipment to be allocated such that the amount allocated each month does 
not exceed the maximum monthly benefit.
    (A) Maximum period. The maximum number of consecutive months during 
which the allowable cost may be prorated in the lesser of:
    (1) The number of months calculated by dividing the allowable cost 
for the item by 2,500 and then doubling the resulting quotient, rounded 
off to the nearest whole number; or
    (2) The number of months of expected useful life of the equipment 
for the requesting beneficiary, as determined by the Director, TRICARE 
Management Activity or designee.
    (B) Alternative allocation period. The allowable equipment cost may 
be allocated monthly in any amount such that the maximum allowable 
monthly

[[Page 154]]

ECHO benefit of $2,500 or the maximum period under paragraph 
(g)(2)(ii)(A) of this section, is not exceeded.
    (C) Authorization. (1) The amount allocated each month as determined 
in accordance with paragraph (g)(2)(ii) of this section will be 
separately authorized as an ECHO benefit.
    (2) An item of durable equipment shall not be authorized when such 
authorization would allow cost-sharing of duplicate equipment, as 
defined in Sec. 199.2, for the same beneficiary.
    (D) Cost-share. A cost-share, as provided by paragraph (f)(2) of 
this section, is required for each month in which a prorated amount is 
authorized.
    (E) Termination. The sponsor's monthly cost-share and the prorated 
equipment expense provisions provided by paragraphs (f) and (g) of this 
section, shall be terminated as of the first day of the month following 
the death of a beneficiary or as of the effective date of a 
beneficiary's loss of ECHO eligibility for any other reason.
    (3) For-profit institutional care provider. Institutional care 
provided by a for-profit entry may be allowed only when the care for a 
specific ECHO beneficiary:
    (i) Is contracted for by a public facility as a part of a publicly 
funded long-term inpatient care program; and
    (ii) Is provided based upon the ECHO beneficiary's being eligible 
for the publicly funded program which has contracted for the care; and
    (iii) Is authorized by the public facility as a part of a publicly 
funded program; and
    (iv) Would cause a cost-share liability in the absence of TRICARE 
eligibility; and
    (v) Produces an ECHO beneficiary cost-share liability that does not 
exceed the maximum charge by the provider to the public facility for the 
contracted level of care.
    (4) ECHO home health care and EHHC respite care. (i) TRICARE-
authorized home health agencies must provide and bill for all authorized 
home health care services through established TRICARE claims' 
mechanisms. No special billing arrangements will be authorized in 
conjunction with coverage that may be provided by Medicaid or other 
federal, state, community or private programs.
    (ii) For authorized ECHO home health care and respite care, TRICARE 
will reimburse the allowable charges or negotiated rates.
    (iii) The maximum monthly Government reimbursement for EHHC, 
including EHHC respite care, will be based on the actual number of hours 
of EHHC services rendered in the month, but in no case will it exceed 
one-twelfth of the annual maximum Government cost-share as determined in 
this section.
    (h) Other Requirements--(1) Applicable part. All provisions of this 
part, except the provisions of Sec. 199.4 unless otherwise provided by 
this section or as directed by the Director, TRICARE Management Activity 
or designee, apply to the ECHO.
    (2) Registration. Active duty sponsors must register potential ECHO 
eligible beneficiaries through the Director, TRICARE Management Activity 
or designee prior to receiving ECHO benefits. The Director, TRICARE 
Management Activity or designee will determine ECHO eligibility and 
update the Defense Enrollment Eligibility Reporting System (DEERS) 
accordingly. Sponsors must provide evidence of enrollment in the 
Exceptional Family Member Program provided by their branch of Service at 
the time they register their family member(s) for the ECHO.
    (3) Benefit authorization. All ECHO benefits require authorization 
by the Director, TRICARE Management Activity or designee prior to 
receipt of such benefits.
    (i) Documentation. The sponsor shall provide such documentation as 
the Director, TRICARE Management Activity or designee requires as a 
prerequisite to authorizing ECHO benefits. Such documentation shall 
describe how the requested benefit will contribute to confirming, 
arresting, or reducing the disabling effects of the qualifying 
condition, including maintenance of function or prevention of further 
deterioration of function, of the beneficiary.
    (ii) Format. An authorization issued by the Director, TRICARE 
Management Activity or designee shall specify such description, dates, 
amounts, requirements, limitations or information as necessary for exact 
identification of

[[Page 155]]

approved benefits and efficient adjudication of resulting claims.
    (iii) Valid period. An authorization for ECHO benefits shall be 
valid until such time as the Director, TRICARE Management Activity or 
designee determines that the authorized services are no longer 
appropriate or required or the beneficiary is no longer eligible under 
paragraph (b) of this section.
    (iv) Authorization waiver. The Director, TRICARE Management Activity 
or designee may waive the requirement for a written authorization for 
rendered ECHO benefits that, except for the absence of the written 
authorization, would be allowable as an ECHO benefit.
    (v) Public facility use. (A) An ECHO beneficiary residing within a 
state must demonstrate that a public facility is not available and 
adequate to meet the needs of their qualifying condition. Such 
requirement shall apply to beneficiaries who request authorization for 
training, rehabilitation, special education, assistive technology, and 
institutional care in private nonprofit, public, and state institutions 
and facilities, and if appropriate, transportation to and from such 
institutions and facilities. The maximum Government cost-share for 
services that require demonstration of public facility non-availability 
or inadequacy is limited to $2,500 per month per beneficiary. State-
administered plans for medical assistance under Title XIX of the Social 
Security Act (Medicaid) are not considered available and adequate 
facilities for the purpose of this section.
    (B) The domicile of the beneficiary shall be the basis for the 
determination of public facility availability when the sponsor and 
beneficiary are separately domiciled due to the sponsor's move to a new 
permanent duty station or due to legal custody requirements.
    (C) Written certification, in accordance with information 
requirements, formats, and procedures established by the director, 
TRICARE Management Activity or designee that requested ECHO services or 
items cannot be obtained from public facilities because the services or 
items are not available and adequate, is a prerequisite for ECHO benefit 
payment for training, rehabilitation, special education, assistive 
technology, and institutional care in private nonprofit, public, and 
state institutions and facilities, and if appropriate, transportation to 
and from such institutions and facilities.
    (1) An administrator or designee of a public facility may make such 
certification for a beneficiary residing within the service area of that 
public facility.
    (2) The Director, TRICARE Management Activity or designee may 
determine, on a case-by-case basis, that apparent public facility 
availability or adequacy for a requested type of service or item cannot 
be substantiated for a specific beneficiary's request for ECHO benefits 
and therefore is not available.
    (i) A case-specific determination shall be based upon a written 
statement by the beneficiary (or sponsor or guardian acting on behalf of 
the beneficiary) which details the circumstances wherein a specific 
individual representing a specific public facility refused to provide a 
public facility use certification, and such other information as the 
Director, TRICARE Management Activity or designee determines to be 
material to the determination.
    (ii) A case-specific determination of public facility availability 
by the Director, TRICARE Management Activity or designee is conclusive 
and is not appealable under Sec. 199.10.
    (4) Repair or maintenance of beneficiary owned durable equipment is 
exempt from the public facility use certification requirements.
    (5) The requirements of this paragraph (i)(4)(v) notwithstanding, no 
public facility use certification is required for services and items 
that are provided under Part C of the Individuals with Disabilities 
Education Act in accordance with the Individual Family Services Plan and 
that are otherwise allowable under the ECHO.
    (i) Implementing instructions. The Director, TRICARE Management 
Activity or designee shall issue TRICARE policies, instructions, 
procedures, guidelines, standards, and criteria as may be necessary to 
implement the intent of this section.
    (j) Implementation transition. Pending administrative actions 
necessary for

[[Page 156]]

the effective implementation of this section following its publication 
in the Federal Register on August 20, 2004, this section as it existed 
prior to August 20, 2004, shall remain in effect for a period of not 
less than 30 days following its publication in the Federal Register.

[69 FR 51564, Aug. 20, 2004]



Sec. 199.6  TRICARE--authorized providers.

    (a) General. This section sets forth general policies and procedures 
that are the basis for the CHAMPUS cost-sharing of medical services and 
supplies provided by institutions, individuals, or other types of 
providers. Providers seeking payment from the Federal Government through 
programs such as CHAMPUS have a duty to familiarize themselves with, and 
comply with, the program requirements.
    (1) Listing of provider does not guarantee payment of benefits. The 
fact that a type of provider is listed in this section is not to be 
construed to mean that CHAMPUS will automatically pay a claim for 
services or supplies provided by such a provider. The provider who 
actually furnishes the service(s) must, in fact, meet all licensing and 
other requirements established by this part to be an authorized 
provider; the provider must not be the subject of sanction under Sec. 
199.9; and, cost-sharing of the services must not otherwise be 
prohibited by this part. In addition, the patient must in fact be an 
eligible beneficiary and the services or supplies billed must be 
authorized and medically necessary, regardless of the standing of the 
provider.
    (2) Outside the United States or emergency situations within the 
United States. Outside the United States or within the United States and 
Puerto Rico in emergency situations, the Director, OCHAMPUS, or a 
designee, after review of the facts, may provide payment to or on behalf 
of a beneficiary who receives otherwise covered services or supplies 
from a provider of service that does not meet the standards described in 
this part.
    Note: Only the Secretary of Defense, the Secretary of Health and 
Human Services, or the Secretary of Transportation, or their designees, 
may authorize (in emergency situations) payment to civilian facilities 
in the United States that are not in compliance with title VI of the 
Civil Rights Act of 1964. For the purpose of the Civil Rights Act only, 
the United States includes the 50 states, the District of Columbia, 
Puerto Rico, Virgin Islands, American Samoa, Guam, Wake Island, Canal 
Zone, and the territories and possessions of the United States.
    (3) Dual Compensation/Conflict of Interest. Title 5, United States 
Code, section 5536 prohibits medical personnel who are active duty 
Uniformed Service members or civilian employees of the Government from 
receiving additional Government compensation above their normal pay and 
allowances for medical care furnished. In addition, Uniformed Service 
members and civilian employees of the Government are generally 
prohibited by law and agency regulations and policies from participating 
in apparent or actual conflict of interest situations in which a 
potential for personal gain exists or in which there is an appearance of 
impropriety or incompatibility with the performance of their official 
duties or responsibilities. The Departments of Defense, Health and Human 
Services, and Transportation have a responsibility, when disbursing 
appropriated funds in the payment of CHAMPUS benefits, to ensure that 
the laws and regulations are not violated. Therefore, active duty 
Uniformed Service members (including a reserve member while on active 
duty and civilian employees of the United States Government shall not be 
authorized to be CHAMPUS providers. While individual employees of the 
Government may be able to demonstrate that the furnishing of care to 
CHAMPUS beneficiaries may not be incompatible with their official duties 
and responsibilities, the processing of millions of CHAMPUS claims each 
year does not enable Program administrators to efficiently review the 
status of the provider on each claim to ensure that no conflict of 
interest or dual compensation situation exists. The problem is further 
complicated given the numerous interagency agreements (for example, 
resource sharing arrangements between the Department of Defense and the 
Veterans Administration in the provision of health care) and other 
unique arrangements which exist at individual treatment facilities

[[Page 157]]

around the country. While an individual provider may be prevented from 
being an authorized CHAMPUS provider even though no conflict of interest 
or dual compensation situation exists, it is essential for CHAMPUS to 
have an easily administered, uniform rule which will ensure compliance 
with the existing laws and regulations. Therefore, a provider who is an 
active duty Uniformed Service member or civilian employee of the 
Government shall not be an authorized CHAMPUS provider. In addition, a 
provider shall certify on each CHAMPUS claim that he/she is not an 
active duty Uniformed Service member or civilian employee of the 
Government.
    (4) [Reserved]
    (5) Utilization review and quality assurance. Providers approved as 
authorized CHAMPUS providers have certain obligations to provide 
services and supplies under CHAMPUS which are (i) furnished at the 
appropriate level and only when and to the extent medically necessary 
under the criteria of this part; (ii) of a quality that meets 
professionally recognized standards of health care; and, (iii) supported 
by adequate medical documentation as may be reasonably required under 
this part by the Director, OCHAMPUS, or designee, to evidence the 
medical necessity and quality of services furnished, as well as the 
appropriateness of the level of care. Therefore, the authorization of 
CHAMPUS benefits is contingent upon the services and supplies furnished 
by any provider being subject to pre-payment or post-payment utilization 
and quality assurance review under professionally recognized standards, 
norms, and criteria, as well as any standards or criteria issued by the 
Director, OCHAMPUS, or a designee, pursuant to this part. (Refer to 
Sec. Sec. 199.4, 199.5, and 199.7 of this part.)
    (6) Exclusion of beneficiary liability. In connection with certain 
utilization review, quality assurance and preauthorization requirements 
of section 199.4 of this part, providers may not hold patients liable 
for payment for certain services for which CHAMPUS payment is 
disallowed. With respect to such services, providers may not seek 
payment from the patient or the patient's family. Any such effort to 
seek payment is a basis for termination of the provider's authorized 
status.
    (7) Provider required. In order to be considered for benefits, all 
services and supplies shall be rendered by, prescribed by, or furnished 
at the direction of, or on the order of a CHAMPUS-authorized provider 
practicing within the scope of his or her license.
    (8) Participating providers. A CHAMPUS-authorized provider is a 
participating provider, as defined in Sec. 199.2 under the following 
circumstances:
    (i) Mandatory participation. (A) An institutional provider in Sec. 
199.6(b), in order to be an authorized provider under TRICARE, must be a 
participating provider for all claims.
    (B) A SNR or a HHA, in order to be an authorized provider under 
TRICARE, must enter into a participation agreement with TRICARE for all 
claims.
    (C) Corporate services providers authorized as CHAMPUS providers 
under the provisions of paragraph (f) of this section must enter into a 
participation agreement as provided by the Director, OCHAMPUS, or 
designee.
    (ii) Voluntary participation--(A) Total claims participation: The 
participating provider program. A CHAMPUS-authorized provider that is 
not required to participate by this part may become a participating 
provider by entering into an agreement or memorandum of understanding 
(MOU) with the Director, OCHAMPUS, or designee, which includes, but is 
not limited to, the provisions of paragraph (a)(13) of this section. The 
Director, OCHAMPUS, or designee, may include in a participating provider 
agreement/MOU provisions that establish between CHAMPUS and a class, 
category, type, or specific provider, uniform procedures and conditions 
which encourage provider participation while improving beneficiary 
access to benefits and contributing to CHAMPUS efficiency. Such 
provisions shall be otherwise allowed by this part or by DoD Directive 
or DoD Instruction specifically pertaining to CHAMPUS claims 
participation. Participating provider program provisions may be 
incorporated into an agreement/MOU to establish a specific

[[Page 158]]

CHAMPUS-provider relationship, such as a preferred provider arrangement.
    (B) Claim-specific participation. A CHAMPUS-authorized provider that 
is not required to participate and that has not entered into a 
participation agreement pursuant to paragraph (a)(8)(ii)(A) of this 
section may elect to be a participating provider on a claim-by-claim 
basis by indicating ``accept assignment'' on each claim form for which 
participation is elected.
    (iii) Claim-by-claim participation. Individual providers that are 
not participating providers pursuant to paragraph (a)(8)(ii) of this 
section may elect to participate on a claim-by-claim basis. They may do 
so by signing the appropriate space on the claims form and submitting it 
to the appropriate TRICARE contractor on behalf of the beneficiary.
    (9) Limitation to authorized institutional provider designation. 
Authorized institutional provider status granted to a specific 
institutional provider applicant does not extend to any institution-
affiliated provider, as defined in Sec. 199.2, of that specific 
applicant.
    (10) Authorized provider. A hospital or institutional provider, 
physician, or other individual professional provider, or other provider 
of services or supplies specifically authorized in this chapter to 
provide benefits under CHAMPUS. In addition, to be an authorized CHAMPUS 
provider, any hospital which is a CHAMPUS participating provider under 
paragraph (a)(7) of this section, shall be a participating provider for 
all care, services, or supplies furnished to an active duty member of 
the uniformed services for which the active duty member is entitled 
under 10 U.S.C. 1074(c). As a participating provider for active duty 
members, the CHAMPUS authorized hospital shall provide such care, 
services, and supplies in accordance with the payment rules of Sec. 
199.16 of this part. The failure of any CHAMPUS participating hospital 
to be a participating provider for any active duty member subjects the 
hospital to termination of the hospital's status as a CHAMPUS authorized 
provider for failure to meet the qualifications established by this 
part.
    (11) Balance billing limits.
    (i) In general. Individual providers including providers salaried or 
under contract by an institutional provider and other providers who are 
not participating providers may not balance bill a beneficiary an amount 
that exceeds the applicable balance billing limit. The balance billing 
limit shall be the same percentage as the Medicare limiting charge 
percentage for nonparticipating practitioners and suppliers.
    (ii) Waiver. The balance billing limit may be waived by the 
Director, OCHAMPUS on a case-by-case basis if requested by a CHAMPUS 
beneficiary. A decision by the Director, OCHAMPUS to waive or not waive 
the limit in any particular case is not subject to the appeal and 
hearing procedures of Sec. 199.10.
    (iii) Compliance. Failure to comply with the balance billing limit 
shall be considered abuse and/or fraud and grounds of exclusion or 
suspension of the provider under Sec. 199.9.
    (12) Medical records. CHAMPUS-authorized provider organizations and 
individuals providing clinical services shall maintain adequate clinical 
records to substantiate that specific care was actually furnished, was 
medically necessary, and appropriate, and identify(ies) the 
individual(s) who provided the care. This applies whether the care is 
inpatient or outpatient. The minimum requirements for medical record 
documentation are set forth by all of the following:
    (i) The cognizant state licensing authority;
    (ii) The Joint Commission on Accreditation of Healthcare 
Organizations, or the appropriate Qualified Accreditation Organization 
as defined in Sec. 199.2;
    (iii) Standards of practice established by national medical 
organizations; and
    (iv) This part.
    (13) Participation agreements. A participation agreement otherwise 
required by this part shall include, in part, all of the following 
provisions requiring that the provider shall:
    (i) Not charge a beneficiary for the following:
    (A) Services for which the provider is entitled to payment from 
CHAMPUS;
    (B) Services for which the beneficiary would be entitled to have 
CHAMPUS

[[Page 159]]

payment made had the provider complied with certain procedural 
requirements.
    (C) Services not medically necessary and appropriate for the 
clinical management of the presenting illness, injury, disorder or 
maternity;
    (D) Services for which a beneficiary would be entitled to payment 
but for a reduction or denial in payment as a result of quality review; 
and
    (E) Services rendered during a period in which the provider was not 
in compliance with one or more conditions of authorization;
    (ii) Comply with the applicable provisions of this part and related 
CHAMPUS administrative policy;
    (iii) Accept the CHAMPUS determined allowable payment combined with 
the cost-share, deductible, and other health insurance amounts payable 
by, or on behalf of, the beneficiary, as full payment for CHAMPUS 
allowed services;
    (iv) Collect from the CHAMPUS beneficiary those amounts that the 
beneficiary has a liability to pay for the CHAMPUS deductible and cost-
share;
    (v) Permit access by the Director, OCHAMPUS, or designee, to the 
clinical record of any CHAMPUS beneficiary, to the financial and 
organizational records of the provider, and to reports of evaluations 
and inspections conducted by state, private agencies or organizations;
    (vi) Provide the Director, OCHAMPUS, or designee, prompt written 
notification of the provider's employment of an individual who, at any 
time during the twelve months preceding such employment, was employed in 
a managerial, accounting, auditing, or similar capacity by an agency or 
organization which is responsible, directly or indirectly for decisions 
regarding Department of Defense payments to the provider;
    (vii) Cooperate fully with a designated utilization and clinical 
quality management organization which has a contract with the Department 
of Defense for the geographic area in which the provider renders 
services;
    (viii) Obtain written authorization before rendering designated 
services or items for which CHAMPUS cost-share may be expected;
    (ix) Maintain clinical and other records related to individuals for 
whom CHAMPUS payment was made for services rendered by the provider, or 
otherwise under arrangement, for a period of 60 months from the date of 
service;
    (x) Maintain contemporaneous clinical records that substantiate the 
clinical rationale for each course of treatment, periodic evaluation of 
the efficacy of treatment, and the outcome at completion or 
discontinuation of treatment;
    (xi) Refer CHAMPUS beneficiaries only to providers with which the 
referring provider does not have an economic interest, as defined in 
Sec. 199.2; and
    (xii) Limit services furnished under arrangement to those for which 
receipt of payment by the CHAMPUS authorized provider discharges the 
payment liability of the beneficiary.
    (14) Implementing instructions. The Director, OCHAMPUS, or a 
designee, shall issue CHAMPUS policies, instructions, procedures, and 
guidelines, as may be necessary to implement the intent of this section.
    (15) Exclusion. Regardless of any provision in this section, a 
provider who is suspended, excluded, or terminated under Sec. 199.9 of 
this part is specifically excluded as an authorized CHAMPUS provider.
    (b) Institutional providers--(1) General. Institutional providers 
are those providers who bill for services in the name of an 
organizational entity (such as hospital and skilled nursing facility), 
rather than in the name of a person. The term ``institutional provider'' 
does not include professional corporations or associations qualifying as 
a domestic corporation under Sec. 301.7701-5 of the Internal Revenue 
Service Regulations nor does it include other corporations that provide 
principally professional services. Institutional providers may provide 
medical services and supplies on either an inpatient or outpatient 
basis.
    (i) Preauthorization. Preauthorization may be required by the 
Director, OCHAMPUS for any health care service for which payment is 
sought under CHAMPUS. (See Sec. Sec. 199.4 and 199.15 for further 
information on preauthorization requirements.)
    (ii) Billing practices.

[[Page 160]]

    (A) Each institutional billing, including those institutions subject 
to the CHAMPUS DRG-based reimbursement method or a CHAMPUS-determined 
all-inclusive rate reimbursement method, must be itemized fully and 
sufficiently descriptive for the CHAMPUS to make a determination of 
benefits.
    (B) Institutional claims subject to the CHAMPUS DRG-based 
reimbursement method or a CHAMPUS-determined all-inclusive rate 
reimbursement method, may be submitted only after the beneficiary has 
been discharged or transferred from the institutional provider's 
facility or program.
    (C) Institutional claims for Residential Treatment Centers and all 
other institutional providers, except those listed in (B) above, should 
be submitted to the appropriate CHAMPUS fiscal intermediary at least 
every 30 days.
    (2) Nondiscrimination policy. Except as provided below, payment may 
not be made for inpatient or outpatient care provided and billed by an 
institutional provider found by the Federal Government to practice 
discrimination in the admission of patients to its services on the basis 
of race, color, or national origin. Reimbursement may not be made to a 
beneficiary who pays for care provided by such a facility and submits a 
claim for reimbursement. In the following circumstances, the Secretary 
of Defense, or a designee, may authorize payment for care obtained in an 
ineligible facility:
    (i) Emergency care. Emergency inpatient or outpatient care.
    (ii) Care rendered before finding of a violation. Care initiated 
before a finding of a violation and which continues after such violation 
when it is determined that a change in the treatment facility would be 
detrimental to the health of the patient, and the attending physician so 
certifies.
    (iii) Other facility not available. Care provided in an ineligible 
facility because an eligible facility is not available within a 
reasonable distance.
    (3) Procedures for qualifying as a CHAMPUS-approved institutional 
provider. General and special hospitals otherwise meeting the 
qualifications outlined in paragraphs (b)(4) (i), (ii), and (iii), of 
this section are not required to request CHAMPUS approval formally.
    (i) JCAH accreditation status. Each CHAMPUS fiscal intermediary 
shall keep informed as to the current JCAH accreditation status of all 
hospitals and skilled nursing facilities in its area; and the provider's 
status under Medicare, particularly with regard to compliance with title 
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d(1)). The Director, 
OCHAMPUS, or a designee, shall specifically approve all other authorized 
institutional providers providing services to CHAMPUS beneficiaries. At 
the discretion of the Director, OCHAMPUS, any facility that is certified 
and participating as a provider of services under title XVIII of the 
Social Security Act (Medicare), may be deemed to meet CHAMPUS 
requirements. The facility must be providing a type and level of service 
that is authorized by this part.
    (ii) Required to comply with criteria. Facilities seeking CHAMPUS 
approval will be expected to comply with appropriate criteria set forth 
in paragraph (b)(4) of this section. They also are required to complete 
and submit CHAMPUS Form 200, ``Required Information, Facility 
Determination Instructions,'' and provide such additional information as 
may be requested by OCHAMPUS. An onsite evaluation, either scheduled or 
unscheduled, may be conducted at the discretion of the Director, 
OCHAMPUS, or a designee. The final determination regarding approval, 
reapproval, or disapproval of a facility will be provided in writing to 
the facility and the appropriate CHAMPUS fiscal intermediary.
    (iii) Notice of peer review rights. All health care facilities 
subject to the DRG-based payment system shall provide CHAMPUS 
beneficiaries, upon admission, with information about peer review 
including their appeal rights. The notices shall be in a form specified 
by the Director, OCHAMPUS.
    (iv) Surveying of facilities. The surveying of newly established 
institutional providers and the periodic resurveying of all authorized 
institutional providers is a continuing process conducted by OCHAMPUS.

[[Page 161]]

    (v) Institutions not in compliance with CHAMPUS standards. If a 
determination is made that an institution is not in compliance with one 
or more of the standards applicable to its specific category of 
institution, CHAMPUS shall take immediate steps to bring about 
compliance or terminate the approval as an authorized institution in 
accordance with Sec. 199.9(f)(2).
    (vi) Participation agreements required for some hospitals which are 
not Medicare-participating. Notwithstanding the provisions of this 
paragraph (B)(3), a hospital which is subject to the CHAMPUS DRG-based 
payment system but which is not a Medicare-participating hospital must 
request and sign an agreement with OCHAMPUS. By signing the agreement, 
the hospital agrees to participate on all CHAMPUS inpatient claims and 
accept the requirements for a participating provider as contained in 
paragraph (a)(8) of Sec. 199.6. Failure to sign such an agreement shall 
disqualify such hospital as a CHAMPUS-approved institutional provider.
    (4) Categories of institutional providers. The following categories 
of institutional providers may be reimbursed by CHAMPUS for services 
provided CHAMPUS beneficiaries subject to any and all definitions, 
conditions, limitation, and exclusions specified or enumerated in this 
part.
    (i) Hospitals, acute care, general and special. An institution that 
provides inpatient services, that also may provide outpatient services 
(including clinical and ambulatory surgical services), and that:
    (A) Is engaged primarily in providing to inpatients, by or under the 
supervision of physicians, diagnostic and therapeutic services for the 
medical or surgical diagnosis and treatment of illness, injury, or 
bodily malfunction (including maternity).
    (B) Maintains clinical records on all inpatients (and outpatients if 
the facility operates an outpatient department or emergency room).
    (C) Has bylaws in effect with respect to its operations and medical 
staff.
    (D) Has a requirement that every patient be under the care of a 
physician.
    (E) Provides 24-hour nursing service rendered or supervised by a 
registered professional nurse, and has a licensed practical nurse or 
registered professional nurse on duty at all times.
    (F) Has in effect a hospital utilization review plan that is 
operational and functioning.
    (G) In the case of an institution in a state in which state or 
applicable local law provides for the licensing of hospitals, the 
hospital:
    (1) Is licensed pursuant to such law, or
    (2) Is approved by the agency of such state or locality responsible 
for licensing hospitals as meeting the standards established for such 
licensing.
    (H) Has in effect an operating plan and budget.
    (I) Is accredited by the JCAH or meets such other requirements as 
the Secretary of Health and Human Services, the Secretary of 
Transportation, or the Secretary of Defense finds necessary in the 
interest of the health and safety of patients who are admitted to and 
furnished services in the institution.
    (ii) Organ transplant centers. To obtain TRICARE approval as an 
organ transplant center, the center must be a Medicare approved 
transplant center or meet the criteria as established by the Executive 
Director, TMA, or a designee.
    (iii) Organ transplant consortia. TRICARE shall approve individual 
pediatric organ transplant centers that meet the criteria established by 
the Executive Director, TMA, or a designee.
    (iv) Hospitals, psychiatric. A psychiatric hospital is an 
institution which is engaged primarily in providing services to 
inpatients for the diagnosis and treatment of mental disorders.
    (A) There are two major categories of psychiatric hospitals:
    (1) The private psychiatric hospital category includes both 
proprietary and the not-for-profit nongovernmental institutions.
    (2) The second category is those psychiatric hospitals that are 
controlled, financed, and operated by departments or agencies of the 
local, state, or Federal Government and always are operated on a not-
for-profit basis.

[[Page 162]]

    (B) In order for the services of a psychiatric hospital to be 
covered, the hospital shall comply with the provisions outlined in 
paragraph (b)(4)(i) of this section. All psychiatric hospitals shall be 
accredited under the JCAHO Accreditation Manual for Hospitals (AMH) 
standards in order for their services to be cost-shared under CHAMPUS. 
In the case of those psychiatric hospitals that are not JCAHO-accredited 
because they have not been in operation a sufficient period of time to 
be eligible to request an accreditation survey by the JCAHO, the 
Director, OCHAMPUS, or a designee, may grant temporary approval if the 
hospital is certified and participating under Title XVIII of the Social 
Security Act (Medicare, Part A). This temporary approval expires 12 
months from the date on which the psychiatric hospital first becomes 
eligible to request an accreditation survey by the JCAHO.
    (C) Factors to be considered in determining whether CHAMPUS will 
cost-share care provided in a psychiatric hospital include, but are not 
limited to, the following considerations:
    (1) Is the prognosis of the patient such that care provided will 
lead to resolution or remission of the mental illness to the degree that 
the patient is of no danger to others, can perform routine daily 
activities, and can be expected to function reasonably outside the 
inpatient setting?
    (2) Can the services being provided be provided more economically in 
another facility or on an outpatient basis?
    (3) Are the charges reasonable?
    (4) Is the care primarily custodial or domiciliary? (Custodial or 
domiciliary care of the permanently mentally ill or retarded is not a 
benefit under the Basic Program.)
    (D) Although psychiatric hospitals are accredited under the JCAHO 
AMH standards, their medical records must be maintained in accordance 
with the JCAHO Consolidated Standard Manual for Child, Adolescent, and 
Adult Psychiatric, Alcoholism, and Drug Abuse Facilities and Facilities 
Serving the Mentally Retarded, along with the requirements set forth in 
Sec. 199.7(b)(3). The hospital is responsible for assuring that patient 
services and all treatment are accurately documented and completed in a 
timely manner.
    (v) Hospitals, long-term (tuberculosis, chronic care, or 
rehabilitation). To be considered a long-term hospital, an institution 
for patients that have tuberculosis or chronic diseases must be an 
institution (or distinct part of an institution) primarily engaged in 
providing by or under the supervision of a physician appropriate medical 
or surgical services for the diagnosis and active treatment of the 
illness or condition in which the institution specializes.
    (A) In order for the service of long-term hospitals to be covered, 
the hospital must comply with the provisions outlined in paragraph 
(b)(4)(i) of this section. In addition, in order for services provided 
by such hospitals to be covered by CHAMPUS, they must be primarily for 
the treatment of the presenting illness.
    (B) Custodial or domiciliary care is not coverable under CHAMPUS, 
even if rendered in an otherwise authorized long-term hospital.
    (C) The controlling factor in determining whether a beneficiary's 
stay in a long-term hospital is coverable by CHAMPUS is the level of 
professional care, supervision, and skilled nursing care that the 
beneficiary requires, in addition to the diagnosis, type of condition, 
or degree of functional limitations. The type and level of medical 
services required or rendered is controlling for purposes of extending 
CHAMPUS benefits; not the type of provider or condition of the 
beneficiary.
    (vi) Skilled nursing facility. A skilled nursing facility is an 
institution (or a distinct part of an institution) that is engaged 
primarily in providing to inpatients medically necessary skilled nursing 
care, which is other than a nursing home or intermediate facility, and 
which:
    (A) Has policies that are developed with the advice of (and with 
provisions for review on a periodic basis by) a group of professionals, 
including one or more physicians and one or more registered nurses, to 
govern the skilled nursing care and related medical services it 
provides.

[[Page 163]]

    (B) Has a physician, a registered nurse, or a medical staff 
responsible for the execution of such policies.
    (C) Has a requirement that the medical care of each patient must be 
under the supervision of a physician, and provides for having a 
physician available to furnish necessary medical care in case of an 
emergency.
    (D) Maintains clinical records on all patients.
    (E) Provides 24-hour skilled nursing service that is sufficient to 
meet nursing needs in accordance with the policies developed as provided 
in paragraph (b)(4)(iv)(A) of this section, and has at least one 
registered professional nurse employed full-time.
    (F) Provides appropriate methods and procedures for the dispensing 
and administering of drugs and biologicals.
    (G) Has in effect a utilization review plan that is operational and 
functioning.
    (H) In the case of an institution in a state in which state or 
applicable local law provides for the licensing of this type facility, 
the institution:
    (1) Is licensed pursuant to such law, or
    (2) Is approved by the agency of such state or locality responsible 
for licensing such institutions as meeting the standards established for 
such licensing.
    (I) Has in effect an operating plan and budget.
    (J) Meets such provisions of the most current edition of the Life 
Safety Code \8\ as are applicable to nursing facilities; except that if 
the Secretary of Health and Human Services has waived, for such periods, 
as deemed appropriate, specific provisions of such code which, if 
rigidly applied, would result in unreasonable hardship upon a nursing 
facility.
---------------------------------------------------------------------------

    \8\ Compiled and published by the National Fire Protection 
Association, Batterymarch Park, Quincy, Massachusetts 02269.
---------------------------------------------------------------------------

    (K) Is an authorized provider under the Medicare program, and meets 
the requirements of Title 18 of the social Security Act, sections 
1819(a), (b), (c), and (d) (42 U.S.C. 1395i-3(a)-(d)).
    (vii) Residential treatment centers. This paragraph (b)(4)(vii) 
establishes standards and requirements for residential treatment centers 
(RTCs).
    (A) Organization and administration.
    (1) Definition. A Residential Treatment Center (RTC) is a facility 
or a distinct part of a facility that provides to beneficiaries under 21 
years of age a medically supervised, interdisciplinary program of mental 
health treatment. An RTC is appropriate for patients whose predominant 
symptom presentation is essentially stabilized, although not resolved, 
and who have persistent dysfunction in major life areas. The extent and 
pervasiveness of the patient's problems require a protected and highly 
structured therapeutic environment. Residential treatment is 
differentiated from:
    (i) Acute psychiatric care, which requires medical treatment and 24-
hour availability of a full range of diagnostic and therapeutic services 
to establish and implement an effective plan of care which will reverse 
life-threatening and/or severely incapacitating symptoms;
    (ii) Partial hospitalization, which provides a less than 24-hour-
per-day, seven-day-per-week treatment program for patients who continue 
to exhibit psychiatric problems but can function with support in some of 
the major life areas;
    (iii) A group home, which is a professionally directed living 
arrangement with the availability of psychiatric consultation and 
treatment for patients with significant family dysfunction and/or 
chronic but stable psychiatric disturbances;
    (iv) Therapeutic school, which is an educational program 
supplemented by psychological and psychiatric services;
    (v) Facilities that treat patients with a primary diagnosis of 
chemical abuse or dependence; and
    (vi) Facilities providing care for patients with a primary diagnosis 
of mental retardation or developmental disability.
    (2) Eligibility.
    (i) Every RTC must be certified pursuant to CHAMPUS certification 
standards. Such standards shall incorporate the basic standards set 
forth in paragraphs (b)(4)(vii) (A) through (D) of

[[Page 164]]

this section, and shall include such additional elaborative criteria and 
standards as the Director, OCHAMPUS determines are necessary to 
implement the basic standards.
    (ii) To be eligible for CHAMPUS certification, the facility is 
required to be licensed and fully operational for six months (with a 
minimum average daily census of 30 percent of total bed capacity) and 
operate in substantial compliance with state and federal regulations.
    (iii) The facility is currently accredited by the Joint Commission 
on Accreditation of Healthcare Organizations (JCAHO) under the current 
edition of the Manual for Mental Health, Chemical Dependency, and Mental 
Retardation/Developmental Disabilities Services which is available from 
JCAHO, P.O. Box 75751, Chicago, IL 60675.
    (iv) The facility has a written participation agreement with 
OCHAMPUS. The RTC is not a CHAMPUS-authorized provider and CHAMPUS 
benefits are not paid for services provided until the date upon which a 
participation agreement is signed by the Director, OCHAMPUS.
    (3) Governing body.
    (i) The RTC shall have a governing body which is responsible for the 
policies, bylaws, and activities of the facility. If the RTC is owned by 
a partnership or single owner, the partners or single owner are regarded 
as the governing body. The facility will provide an up-to-date list of 
names, addresses, telephone numbers and titles of the members of the 
governing body.
    (ii) The governing body ensures appropriate and adequate services 
for all patients and oversees continuing development and improvement of 
care. Where business relationships exist between the governing body and 
facility, appropriate conflict-of-interest policies are in place.
    (iii) Board members are fully informed about facility services and 
the governing body conducts annual review of its performance in meeting 
purposes, responsibilities, goals and objectives.
    (4) Chief executive officer. The chief executive officer, appointed 
by and subject to the direction of the governing body, shall assume 
overall administrative responsibility for the operation of the facility 
according to governing body policies. The chief executive officer shall 
have five years' administrative experience in the field of mental 
health. On October 1, 1997, the CEO shall possess a degree in business 
administration, public health, hospital administration, nursing, social 
work, or psychology, or meeting similar educational requirements as 
prescribed by the Director, OCHAMPUS.
    (5) Clinical Director. The clinical director, appointed by the 
governing body, shall be a psychiatrist or doctoral level psychologist 
who meets applicable CHAMPUS requirements for individual professional 
providers and is licensed to practice in the state where the residential 
treatment center is located. The clinical director shall possess 
requisite education and experience, credentials applicable under state 
practice and licensing laws appropriate to the professional discipline, 
and a minimum of five years' clinical experience in the treatment of 
children and adolescents. The clinical director shall be responsible for 
planning, development, implementation, and monitoring of all clinical 
activities.
    (6) Medical director. The medical director, appointed by the 
governing body, shall be licensed to practice medicine in the state 
where the residential treatment center is located and shall possess 
requisite education and experience, including graduation from an 
accredited school of medicine or osteopathy, an approved residency in 
psychiatry and a minimum of five years clinical experience in the 
treatment of children and adolescents. The Medical Director shall be 
responsible for the planning, development, implementation, and 
monitoring of all activities relating to medical treatment of patients. 
If qualified, the Medical Director may also serve as Clinical Director.
    (7) Medical or professional staff organization. The governing body 
shall establish a medical or professional staff organization to assure 
effective implementation of clinical privileging, professional conduct 
rules, and other activities directly affecting patient care.
    (8) Personnel policies and records. The RTC shall maintain written 
personnel

[[Page 165]]

policies, updated job descriptions and personnel records to assure the 
selection of qualified personnel and successful job performance of those 
personnel.
    (9) Staff development. The facility shall provide appropriate 
training and development programs for administrative, professional 
support, and direct care staff.
    (10) Fiscal accountability. The RTC shall assure fiscal 
accountability to applicable government authorities and patients.
    (11) Designated teaching facilities. Students, residents, interns or 
fellows providing direct clinical care are under the supervision of a 
qualified staff member approved by an accredited university. The 
teaching program is approved by the Director, OCHAMPUS.
    (12) Emergency reports and records. The facility notifies OCHAMPUS 
of any serious occurrence involving CHAMPUS beneficiaries.
    (B) Treatment services.
    (1) Staff composition.
    (i) The RTC shall follow written plans which assure that medical and 
clinical patient needs will be appropriately addressed 24 hours a day, 
seven days a week by a sufficient number of fully qualified (including 
license, registration or certification requirements, educational 
attainment, and professional experience) health care professionals and 
support staff in the respective disciplines. Clinicians providing 
individual, group, and family therapy meet CHAMPUS requirements as 
qualified mental health providers and operate within the scope of their 
licenses. The ultimate authority for planning, development, 
implementation, and monitoring of all clinical activities is vested in a 
psychiatrist or doctoral level psychologist. The management of medical 
care is vested in a physician.
    (ii) The RTC shall ensure adequate coverage by fully qualified staff 
during all hours of operation, including physician availability, other 
professional staff coverage, and support staff in the respective 
disciplines.
    (2) Staff qualifications. The RTC will have a sufficient number of 
qualified mental health providers, administrative, and support staff to 
address patients' clinical needs and to coordinate the services 
provided. RTCs which employ individuals with master's or doctoral level 
degrees in a mental health discipline who do not meet the licensure, 
certification and experience requirements for a qualified mental health 
provider but are actively working toward licensure or certification, may 
provide services within the all-inclusive per diem rate, provided the 
individual works under the clinical supervision of a fully qualified 
mental health provider employed by the RTC. All other program services 
shall be provided by trained, licensed staff.
    (3) Patient rights.
    (i) The RTC shall provide adequate protection for all patient 
rights, including rights provided by law, privacy, personnel rights, 
safety, confidentiality, informed consent, grievances, and personal 
dignity.
    (ii) The facility has a written policy regarding patient abuse and 
neglect.
    (iii) Facility marketing and advertising meets professional 
standards.
    (4) Behavioral management. The RTC shall adhere to a comprehensive, 
written plan of behavioral management, developed by the clinical 
director and the medical or professional staff and approved by the 
governing body, including strictly limited procedures to assure that the 
restraint or seclusion are used only in extraordinary circumstances, are 
carefully monitored, and are fully documented. Only trained and 
clinically privileged RNs or qualified mental health professionals may 
be responsible for the implementation of seclusion and restraint 
procedures in an emergency situation.
    (5) Admission process. The RTC shall maintain written policies and 
procedures to ensure that, prior to an admission, a determination is 
made, and approved pursuant to CHAMPUS preauthorization requirements, 
that the admission is medically and/or psychologically necessary and the 
program is appropriate to meet the patient's needs. Medical and/or 
psychological necessity determinations shall be rendered by qualified 
mental health professionals who meet CHAMPUS requirements for individual 
professional providers and who are permitted by law and by the facility 
to refer patients for admission.

[[Page 166]]

    (6) Assessments. The professional staff of the RTC shall complete a 
current multidisciplinary assessment which includes, but is not limited 
to physical, psychological, developmental, family, educational, social, 
spiritual and skills assessment of each patient admitted. Unless 
otherwise specified, all required clinical assessments are completed 
prior to development of the multidisciplinary treatment plan.
    (7) Clinical formulation. A qualified mental health professional of 
the RTC will complete a clinical formulation on all patients. The 
clinical formulation will be reviewed and approved by the responsible 
individual professional provider and will incorporate significant 
findings from each of the multidisciplinary assessments. It will provide 
the basis for development of an interdisciplinary treatment plan.
    (8) Treatment planning. A qualified mental health professional shall 
be responsible for the development, supervision, implementation, and 
assessment of a written, individualized, interdisciplinary plan of 
treatment, which shall be completed within 10 days of admission and 
shall include individual, measurable, and observable goals for 
incremental progress and discharge. A preliminary treatment plan is 
completed within 24 hours of admission and includes at least an 
admission note and orders written by the admitting mental health 
professional. The master treatment plan is reviewed and revised at least 
every 30 days, or when major changes occur in treatment.
    (9) Discharge and transition planning. The RTC shall maintain a 
transition planning process to address adequately the anticipated needs 
of the patient prior to the time of discharge. The planning involves 
determining necessary modifications in the treatment plan, facilitating 
the termination of treatment, and identifying resources to maintain 
therapeutic stability following discharge.
    (10) Clinical documentation. Clinical records shall be maintained on 
each patient to plan care and treatment and provide ongoing evaluation 
of the patient's progress. All care is documented and each clinical 
record contains at least the following: demographic data, consent forms, 
pertinent legal documents, all treatment plans and patient assessments, 
consultation and laboratory reports, physician orders, progress notes, 
and a discharge summary. All documentation will adhere to applicable 
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3). 
An appropriately qualified records administrator or technician will 
supervise and maintain the quality of the records. These requirements 
are in addition to other records requirements of this part, and 
documentation requirements of the Joint Commission on Accreditation of 
Healthcare Organizations.
    (11) Progress notes. RTC's shall document the course of treatment 
for patients and families using progress notes which provide information 
to review, analyze, and modify the treatment plans. Progress notes are 
legible, contemporaneous, sequential, signed and dated and adhere to 
applicable provisions of the Manual of Mental Health, Chemical 
Dependency, and Mental Retardation/Development Disabilities Services and 
requirements set forth in Sec. 199.7(b)(3).
    (12) Therapeutic services.
    (i) Individual, group, and family psychotherapy are provided to all 
patients, consistent with each patient's treatment plan, by qualified 
mental health providers.
    (ii) A range of therapeutic activities, directed and staffed by 
qualified personnel, are offered to help patients meet the goals of the 
treatment plan.
    (iii) Therapeutic educational services are provided or arranged that 
are appropriate to the patients educational and therapeutic needs.
    (13) Ancillary services. A full range of ancillary services is 
provided. Emergency services include policies and procedures for 
handling emergencies with qualified personnel and written agreements 
with each facility providing the service. Other ancillary services 
include physical health, pharmacy and dietary services.
    (C) Standards for physical plant and environment.
    (1) Physical environment. The buildings and grounds of the RTC shall 
be maintained so as to avoid health and safety hazards, be supportive of 
the

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services provided to patients, and promote patient comfort, dignity, 
privacy, personal hygiene, and personal safety.
    (2) Physical plant safety. The RTC shall be of permanent 
construction and maintained in a manner that protects the lives and 
ensures the physical safety of patients, staff, and visitors, including 
conformity with all applicable building, fire, health, and safety codes.
    (3) Disaster planning. The RTC shall maintain and rehearse written 
plan for taking care of casualties and handling other consequences 
arising from internal and external disasters.
    (D) Standards for evaluation system.
    (1) Quality assessment and improvement. The RTC shall develop and 
implement a comprehensive quality assurance and quality improvement 
program that monitors the quality, efficiency, appropriateness, and 
effectiveness of the care, treatments, and services it provides for 
patients and their families, primarily utilizing explicit clinical 
indicators to evaluate all functions of the RTC and contribute to an 
ongoing process of program improvement. The clinical director is 
responsible for developing and implementing quality assessment and 
improvement activities throughout the facility.
    (2) Utilization review. The RTC shall implement a utilization review 
process, pursuant to a written plan approved by the professional staff, 
the administration, and the governing body, that assesses the 
appropriateness of admission, continued stay, and timeliness of 
discharge as part of an effort to provide quality patient care in a 
cost-effective manner. Findings of the utilization review process are 
used as a basis for revising the plan of operation, including a review 
of staff qualifications and staff composition.
    (3) Patient records review. The RTC shall implement a process, 
including monthly reviews of a representative sample of patient records, 
to determine the completeness and accuracy of the patient records and 
the timeliness and pertinence of record entries, particularly with 
regard to regular recording of progress/non-progress in treatment.
    (4) Drug utilization review. The RTC shall implement a comprehensive 
process for the monitoring and evaluating of the prophylactic, 
therapeutic, and empiric use of drugs to assure that medications are 
provided appropriately, safely, and effectively.
    (5) Risk management. The RTC shall implement a comprehensive risk 
management program, fully coordinated with other aspects of the quality 
assurance and quality improvement program, to prevent and control risks 
to patients and staff and costs associated with clinical aspects of 
patient care and safety.
    (6) Infection control. The RTC shall implement a comprehensive 
system for the surveillance, prevention, control, and reporting of 
infections acquired or brought into the facility.
    (7) Safety. The RTC shall implement an effective program to assure a 
safe environment for patients, staff, and visitors, including an 
incident report system, a continuous safety surveillance system, and an 
active multidisciplinary safety committee.
    (8) Facility evaluation. The RTC annually evaluates accomplishment 
of the goals and objectives of each clinical program and service of the 
RTC and reports findings and recommendations to the governing body.
    (E) Participation agreement requirements. In addition to other 
requirements set forth in paragraph (b)(4)(vii), of this section in 
order for the services of an RTC to be authorized, the RTC shall have 
entered into a Participation Agreement with OCHAMPUS. The period of a 
participation agreement shall be specified in the agreement, and will 
generally be for not more than five years. Participation agreements 
entered into prior April 6, 1995 must be renewed not later than October 
1, 1995. In addition to review of a facility's application and 
supporting documentation, an on-site inspection by OCHAMPUS authorized 
personnel may be required prior to signing a Participation Agreement. 
Retroactive approval is not given. In addition, the Participation 
Agreement shall include provisions that the RTC shall, at a minimum:
    (1) Render residential treatment center impatient services to 
eligible CHAMPUS beneficiaries in need of such services, in accordance 
with the participation agreement and CHAMPUS regulation;

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    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14(f) or such other method as determined by the 
Director, OCHAMPUS;
    (3) Accept the CHAMPUS all-inclusive per diem rate as payment in 
full and collect from the CHAMPUS beneficiary or the family of the 
CHAMPUS beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of CHAMPUS;
    (4) Make all reasonable efforts acceptable to the Director, 
OCHAMPUS, to collect those amounts, which represents the beneficiary's 
liability, as defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to CHAMPUS;
    (6) Submit claims for services provided to CHAMPUS beneficiaries at 
least 30 days (except to the extent a delay is necessitated by efforts 
to first collect from other health insurance). If claims are not 
submitted at least every 30 days, the RTC agrees not to bill the 
beneficiary or the beneficiary's family for any amounts disallowed by 
CHAMPUS;
    (7) Certify that:
    (i) It is and will remain in compliance with the provisions of 
paragraph (b)(4)(vii) of this section establishing standards for 
Residential Treatment Centers;
    (ii) It has conducted a self assessment of the facility's compliance 
with the CHAMPUS Standards for Residential Treatment Centers Serving 
Children and Adolescents with Mental Disorders, as issued by the 
Director, OCHAMPUS and notified the Director, OCHAMPUS of any matter 
regarding which the facility is not in compliance with such standards; 
and
    (iii) It will maintain compliance with the CHAMPUS Standards for 
Residential Treatment Centers Serving Children and Adolescents with 
Mental Disorders, as issued by the Director, OCHAMPUS, except for any 
such standards regarding which the facility notifies the Director, 
OCHAMPUS that it is not in compliance.
    (8) Designate an individual who will act as liaison for CHAMPUS 
inquiries. The RTC shall inform OCHAMPUS in writing of the designated 
individual;
    (9) Furnish OCHAMPUS, as requested by OCHAMPUS, with cost data 
certified by an independent accounting firm or other agency as 
authorized by the Director, OCHAMPUS;
    (10) Comply with all requirements of this section applicable to 
institutional providers generally concerning preauthorization, 
concurrent care review, claims processing, beneficiary liability, double 
coverage, utilization and quality review and other matters;
    (11) Grant the Director, OCHAMPUS, or designee, the right to conduct 
quality assurance audits or accounting audits with full access to 
patients and records (including records relating to patients who are not 
CHAMPUS beneficiaries) to determine the quality and cost-effectiveness 
of care rendered. The audits may be conducted on a scheduled or 
unscheduled (unannounced) basis. This right to audit/review includes, 
but is not limited to:
    (i) Examination of fiscal and all other records of the RTC which 
would confirm compliance with the participation agreement and 
designation as an authorized CHAMPUS RTC provider;
    (ii) Conducting such audits of RTC records including clinical, 
financial, and census records, as may be necessary to determine the 
nature of the services being provided, and the basis for charges and 
claims against the United States for services provided CHAMPUS 
beneficiaries;
    (iii) Examining reports of evaluations and inspections conducted by 
federal, state and local government, and private agencies and 
organizations;
    (iv) Conducting on-site inspections of the facilities of the RTC and 
interviewing employees, members of the staff, contractors, board 
members, volunteers, and patients, as required;
    (v) Audits conducted by the United States General Accounting Office.
    (F) Other requirements applicable to RTCs.
    (1) Even though an RTC may qualify as a CHAMPUS-authorized provider

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and may have entered into a participation agreement with CHAMPUS, 
payment by CHAMPUS for particular services provided is contingent upon 
the RTC also meeting all conditions set forth in Sec. 199.4 especially 
all requirements of paragraph (b)(4) of that section.
    (2) The RTC shall provide inpatient services to CHAMPUS 
beneficiaries in the same manner it provides inpatient services to all 
other patients. The RTC may not discriminate against CHAMPUS 
beneficiaries in any manner, including admission practices, placement in 
special or separate wings or rooms, or provisions of special or limited 
treatment.
    (3) The RTC shall assure that all certifications and information 
provided to the Director, OCHAMPUS incident to the process of obtaining 
and retaining authorized provider status is accurate and that it has no 
material errors or omissions. In the case of any misrepresentations, 
whether by inaccurate information being provided or material facts 
withheld, authorized status will be denied or terminated, and the RTC 
will be ineligible for consideration for authorized provider status for 
a two year period.
    (viii) Christian Science sanatoriums. The services obtained in 
Christian Science sanatoriums are covered by CHAMPUS as inpatient care. 
To qualify for coverage, the sanatorium either must be operated by, or 
be listed and certified by the First Church of Christ, Scientist.
    (ix) Infirmaries. Infirmaries are facilities operated by student 
health departments of colleges and universities to provide inpatient or 
outpatient care to enrolled students. Charges for care provided by such 
facilities will not be cost-shared by CHAMPUS if the student would not 
be charged in the absence of CHAMPUS, or if student is covered by a 
mandatory student health insurance plan, in which enrollment is required 
as a part of the student's school registration and the charges by the 
college or university include a premium for the student health insurance 
coverage. CHAMPUS will cost-share only if enrollment in the student 
health program or health insurance plan is voluntary.
    Note: An infirmary in a boarding school also may qualify under this 
provision, subject to review and approval by the Director, OCHAMPUS or a 
designee.
    (x) Other special institution providers. (A) General. (1) Care 
provided by certain special institutional providers (on either an 
inpatient or outpatient basis), may be cost-shared by CHAMPUS under 
specified circumstances and only if the provider is specifically 
identified in paragraph (b)(4)(x) of this section.
    (i) The course of treatment is prescribed by a doctor of medicine or 
osteopathy.
    (ii) The patient is under the supervision of a physician during the 
entire course of the inpatient admission or the outpatient treatment.
    (iii) The type and level of care and service rendered by the 
institution are otherwise authorized by this part.
    (iv) The facility meets all licensing or other certification 
requirements that are extant in the jurisdiction in which the facility 
is located geographically.
    (v) Is other than a nursing home, intermediate care facility, home 
for the aged, halfway house, or other similar institution.
    (vi) Is accredited by the JCAH or other CHAMPUS-approved 
accreditation organization, if an appropriate accreditation program for 
the given type of facility is available. As future accreditation 
programs are developed to cover emerging specialized treatment programs, 
such accreditation will be a prerequisite to coverage by CHAMPUS for 
services provided by such facilities.
    (2) To ensure that CHAMPUS beneficiaries are provided quality care 
at a reasonable cost when treated by a special institutional provider, 
the Director, OCHAMPUS may:
    (i) Require prior approval of all admissions to special 
institutional providers.
    (ii) Set appropriate standards for special institutional providers 
in addition to or in the absence of JCAHO accreditation.
    (iii) Monitor facility operations and treatment programs on a 
continuing basis and conduct onsite inspections on a scheduled and 
unscheduled basis.
    (iv) Negotiate agreements of participation.

[[Page 170]]

    (v) Terminate approval of a case when it is ascertained that a 
departure from the facts upon which the admission was based originally 
has occurred.
    (vi) Declare a special institutional provider not eligible for 
CHAMPUS payment if that facility has been found to have engaged in 
fraudulent or deceptive practices.
    (3) In general, the following disclaimers apply to treatment by 
special institutional providers:
    (i) Just because one period or episode of treatment by a facility 
has been covered by CHAMPUS may not be construed to mean that later 
episodes of care by the same or similar facility will be covered 
automatically.
    (ii) The fact that one case has been authorized for treatment by a 
specific facility or similar type of facility may not be construed to 
mean that similar cases or later periods of treatment will be extended 
CHAMPUS benefits automatically.
    (B) Types of providers. The following is a list of facilities that 
have been designated specifically as special institutional providers.
    (1) Free-standing ambulatory surgical centers. Care provided by 
freestanding ambulatory surgical centers may be cost-shared by CHAMPUS 
under the following circumstances:
    (i) The treatment is prescribed and supervised by a physician.
    (ii) The type and level of care and services rendered by the center 
are otherwise authorized by this part.
    (iii) The center meets all licensing or other certification 
requirements of the jurisdiction in which the facility is located.
    (iv) The center is accredited by the JCAH, the Accreditation 
Association for Ambulatory Health Care, Inc. (AAAHC), or such other 
standards as authorized by the Director, OCHAMPUS.
    (v) A childbirth procedure provided by a CHAMPUS-approved free-
standing ambulatory surgical center shall not be cost-shared by the 
CHAMPUS unless the surgical center is also a CHAMPUS-approved birthing 
center institutional provider as established by the birthing center 
provider certification requirement of this Regulation.
    (2) [Reserved]
    (xi) Birthing centers. A birthing center is a freestanding or 
institution-affiliated outpatient maternity care program which 
principally provides a planned course of outpatient prenatal care and 
outpatient childbirth service limited to low-risk pregnancies; excludes 
care for high-risk pregnancies; limits childbirth to the use of natural 
childbirth procedures; and provides immediate newborn care.
    (A) Certification requirements. A birthing center which meets the 
following criteria may be designated as an authorized CHAMPUS 
institutional provider:
    (1) The predominant type of service and level of care rendered by 
the center is otherwise authorized by this part.
    (2) The center is licensed to operate as a birthing center where 
such license is available, or is specifically licensed as a type of 
ambulatory health care facility where birthing center specific license 
is not available, and meets all applicable licensing or certification 
requirements that are extant in the state, county, municipality, or 
other political jurisdiction in which the center is located.
    (3) The center is accredited by a nationally recognized 
accreditation organization whose standards and procedures have been 
determined to be acceptable by the Director, OCHAMPUS, or a designee.
    (4) The center complies with the CHAMPUS birthing center standards 
set forth in this part.
    (5) The center has entered into a participation agreement with 
OCHAMPUS in which the center agrees, in part, to:
    (i) Participate in CHAMPUS and accept payment for maternity services 
based upon the reimbursement methodology for birthing centers;
    (ii) Collect from the CHAMPUS beneficiary only those amounts that 
represent the beneficiary's liability under the participation agreement 
and the reimbursement methodology for birthing centers, and the amounts 
for services and supplies that are not a benefit of the CHAMPUS;

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    (iii) Permit access by the Director, OCHAMPUS, or a designee, to the 
clinical record of any CHAMPUS beneficiary, to the financial and 
organizational records of the center, and to reports of evaluations and 
inspections conducted by state or private agencies or organizations;
    (iv) Submit claims first to all health benefit and insurance plans 
primary to the CHAMPUS to which the beneficiary is entitled and to 
comply with the double coverage provisions of this part;
    (v) Notify CHAMPUS in writing within 7 days of the emergency 
transport of any CHAMPUS beneficiary from the center to an acute care 
hospital or of the death of any CHAMPUS beneficiary in the center.
    (6) A birthing center shall not be a CHAMPUS-authorized 
institutional provider and CHAMPUS benefits shall not be paid for any 
service provided by a birthing center before the date the participation 
agreement is signed by the Director, OCHAMPUS, or a designee.
    (B) CHAMPUS birthing center standards. (1) Environment: The center 
has a safe and sanitary environment, properly constructed, equipped, and 
maintained to protect health and safety and meets the applicable 
provisions of the ``Life Safety Code'' of the National Fire Protection 
Association.
    (2) Policies and procedures: The center has written administrative, 
fiscal, personnel and clinical policies and procedures which 
collectively promote the provision of high-quality maternity care and 
childbirth services in an orderly, effective, and safe physical and 
organizational environment.
    (3) Informed consent: Each CHAMPUS beneficiary admitted to the 
center will be informed in writing at the time of admission of the 
nature and scope of the center's program and of the possible risks 
associated with maternity care and childbirth in the center.
    (4) Beneficiary care: Each woman admitted will be cared for by or 
under the direct supervision of a specific physician or a specific 
certified nurse-midwife who is otherwise eligible as a CHAMPUS 
individual professional provider.
    (5) Medical direction: The center has written memoranda of 
understanding (MOU) for routine consultation and emergency care with an 
obstetrician-gynecologist who is certified or is eligible for 
certification by the American Board of Obstetrics and Gynecology or the 
American Osteopathic Board of Obstetrics and Gynecology and with a 
pediatrician who is certified or eligible for certification by the 
American Board of Pediatrics or by the American Osteopathic Board of 
Pediatrics, each of whom have admitting privileges to at least one 
backup hospital. In lieu of a required MOU, the center may employ a 
physician with the required qualifications. Each MOU must be renewed 
annually.
    (6) Admission and emergency care criteria and procedures. The center 
has written clinical criteria and administrative procedures, which are 
reviewed and approved annually by a physician related to the center as 
required by paragraph (b)(4)(xi)(B)(5) above, for the exclusion of a 
woman with a high-risk pregnancy from center care and for management of 
maternal and neonatal emergencies.
    (7) Emergency treatment. The center has a written memorandum of 
understanding (MOU) with at least one backup hospital which documents 
that the hospital will accept and treat any woman or newborn transferred 
from the center who is in need of emergency obstetrical or neonatal 
medical care. In lieu of this MOU with a hospital, a birthing center may 
have an MOU with a physician, who otherwise meets the requirements as a 
CHAMPUS individual professional provider, and who has admitting 
privileges to a backup hospital capable of providing care for critical 
maternal and neonatal patients as demonstrated by a letter from that 
hospital certifying the scope and expected duration of the admitting 
privileges granted by the hospital to the physician. The MOU must be 
reviewed annually.
    (8) Emergency medical transportation. The center has a written 
memorandum of understanding (MOU) with at least one ambulance service 
which documents that the ambulance service is routinely staffed by 
qualified personnel who are capable of the management of

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critical maternal and neonatal patients during transport and which 
specifies the estimated transport time to each backup hospital with 
which the center has arranged for emergency treatment as required in 
paragraph (b)(4)(xi)(B)(7) above. Each MOU must be renewed annually.
    (9) Professional staff. The center's professional staff is legally 
and professionally qualified for the performance of their professional 
responsibilities.
    (10) Medical records. The center maintains full and complete written 
documentation of the services rendered to each woman admitted and each 
newborn delivered. A copy of the informed consent document required by 
paragraph (b)(4)(xi)(B)(3), above, which contains the original signature 
of the CHAMPUS beneficiary, signed and dated at the time of admission, 
must be maintained in the medical record of each CHAMPUS beneficiary 
admitted.
    (11) Quality assurance. The center has an organized program for 
quality assurance which includes, but is not limited to, written 
procedures for regularly scheduled evaluation of each type of service 
provided, of each mother or newborn transferred to a hospital, and of 
each death within the facility.
    (12) Governance and administration. The center has a governing body 
legally responsible for overall operation and maintenance of the center 
and a full-time employee who has authority and responsibility for the 
day-to-day operation of the center.
    (xii) Psychiatric partial hospitalization programs. Paragraph 
(b)(4)(xii) of this section establishes standards and requirements for 
psychiatric partial hospitalization programs.
    (A) Organization and administration.
    (1) Definition. Partial hospitalization is defined as a time-
limited, ambulatory, active treatment program that offers 
therapeutically intensive, coordinated, and structured clinical services 
within a stable therapeutic milieu. Partial hospitalization programs 
serve patients who exhibit psychiatric symptoms, disturbances of 
conduct, and decompensating conditions affecting mental health.
    (2) Eligibility.
    (i) Every psychiatric partial hospitalization program must be 
certified pursuant to CHAMPUS certification standards. Such standards 
shall incorporate the basic standards set forth in paragraphs 
(b)(4)(xii) (A) through (D) of this section, and shall include such 
additional elaborative criteria and standards as the Director, OCHAMPUS 
determines are necessary to implement the basic standards. Each 
psychiatric partial hospitalization program must be either a distinct 
part of an otherwise authorized institutional provider or a freestanding 
program.
    (ii) To be eligible for CHAMPUS certification, the facility is 
required to be licensed and fully operational for a period of at least 
six months (with a minimum patient census of at least 30 percent of bed 
capacity) and operate in substantial compliance with state and federal 
regulations.
    (iii) The facility is currently accredited by the Joint Commission 
on Accreditation of Healthcare Organizations under the current edition 
of the Accreditation Manual for Mental Health, Chemical Dependency, and 
Mental Retardation/Developmental Disabilities Services.
    (iv) The facility has a written participation agreement with 
OCHAMPUS. On October 1, 1995, the PHP is not a CHAMPUS-authorized 
provider and CHAMPUS benefits are not paid for services provided until 
the date upon which a participation agreement is signed by the Director, 
OCHAMPUS. Partial hospitalization is capable of providing an 
interdisciplinary program of medical and therapeutic services a minimum 
of three hours per day, five days per week, and may include full- or 
half-day, evening, and weekend treatment programs.
    (3) Governing body.
    (i) The PHP shall have a governing body which is responsible for the 
policies, bylaws, and activities of the facilities. If the PHP is owned 
by a partnership or single owner, the partners or single owner are 
regarded as the governing body. The facility will provide an up-to-date 
list of names, addresses, telephone numbers, and titles of the members 
of the governing body.
    (ii) The governing body ensures appropriate and adequate services 
for all patients and oversees continuing development and improvement of 
care.

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Where business relationships exist between the governing body and 
facility, appropriate conflict-of-interest policies are in place.
    (iii) Board members are fully informed about facility services and 
the governing body conducts annual review of its performance in meeting 
purposes, responsibilities, goals and objectives.
    (4) Chief executive officer. The Chief Executive Officer, appointed 
by and subject to the direction of the governing body, shall assume 
overall administrative responsibility for the operation of the facility 
according to governing body policies. The chief executive officer shall 
have five years' administrative experience in the field of mental 
health. On October 1, 1997, the CEO shall possess a degree in business 
administration, public health, hospital administration, nursing, social 
work, or psychology, or meet similar educational requirements as 
prescribed by the Director, OCHAMPUS.
    (5) Clinical Director. The clinical director, appointed by the 
governing body, shall be a psychiatrist or doctoral level psychologist 
who meets applicable CHAMPUS requirements for individual professional 
providers and is licensed to practice in the state where the PHP is 
located. The clinical director shall possess requisite education and 
experience, credentials applicable under state practice and licensing 
laws appropriate to the professional discipline, and a minimum of five 
years' clinical experience in the treatment of mental disorders specific 
to the ages and disabilities of the patients served. The clinical 
director shall be responsible for planning, development, implementation, 
and monitoring of all clinical activities.
    (6) Medical director. The medical director, appointed by the 
governing body, shall be licensed to practice medicine in the state 
where the residential treatment center is located and shall possess 
requisite education and experience, including graduation from an 
accredited school of medicine or osteopathy, an approved residency in 
psychiatry and a minimum of five years clinical experience in the 
treatment of mental disorders specific to the ages and disabilities of 
the patients served. The Medical Director shall be responsible for the 
planning, development, implementation, and monitoring of all activities 
relating to medical treatment of patients. If qualified, the Medical 
Director may also serve as Clinical Director.
    (7) Medical or professional staff organization. The governing body 
shall establish a medical or professional staff organization to assure 
effective implementation of clinical privileging, professional conduct 
rules, and other activities directly affecting patient care.
    (8) Personnel policies and records. The PHP shall maintain written 
personnel policies, updated job descriptions, personnel records to 
assure the selection of qualified personnel and successful job 
performance of those personnel.
    (9) Staff development. The facility shall provide appropriate 
training and development programs for administrative, professional 
support, and direct care staff.
    (10) Fiscal accountability. The PHP shall assure fiscal 
accountability to applicable government authorities and patients.
    (11) Designated teaching facilities. Students, residents, interns, 
or fellows providing direct clinical care are under the supervision of a 
qualified staff member approved by an accredited university. The 
teaching program is approved by the Director, OCHAMPUS.
    (12) Emergency reports and records. The facility notifies OCHAMPUS 
of any serious occurrence involving CHAMPUS beneficiaries.
    (B) Treatment services.
    (1) Staff composition.
    (i) The PHP shall ensure that patient care needs will be 
appropriately addressed during all hours of operation by a sufficient 
number of fully qualified (including license, registration or 
certification requirements, educational attainment, and professional 
experience) health care professionals. Clinicians providing individual, 
group, and family therapy meet CHAMPUS requirements as qualified mental 
health providers, and operate within the scope of their licenses. The 
ultimate authority for managing care is vested in a psychiatrist or 
licensed doctor level psychologist. The management of medical care is 
vested in a physician.

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    (ii) The PHP shall establish and follow written plans to assure 
adequate staff coverage during all hours of operation, including 
physician availability, other professional staff coverage, and support 
staff in the respective disciplines.
    (2) Staff qualifications. The PHP will have a sufficient number of 
qualified mental health providers, administrative, and support staff to 
address patients' clinical needs and to coordinate the services 
provided. PHPs which employ individuals with master's or doctoral level 
degrees in a mental health discipline who do not meet the licensure, 
certification and experience requirements for a qualified mental health 
provider but are actively working toward licensure or certification, may 
provide services within the all-inclusive per diem rate, provided the 
individual works under the clinical supervision of a fully qualified 
mental health provider employed by the PHP. All other program services 
shall be provided by trained, licensed staff.
    (3) Patient rights.
    (i) The PHP shall provide adequate protection for all patient 
rights, including rights provided by law, privacy, personal rights, 
safety, confidentiality, informed consent, grievances, and personal 
dignity.
    (ii) The facility has a written policy regarding patient abuse and 
neglect.
    (iii) Facility marketing and advertising meets professional 
standards.
    (4) Behavioral management. The PHP shall adhere to a comprehensive, 
written plan of behavior management, developed by the clinical director 
and the medical or professional staff and approved by the governing 
body, including strictly limited procedures to assure that restraint or 
seclusion are used only in extraordinary circumstances, are carefully 
monitored, and are fully documented. Only trained and clinically 
privileged RNs or qualified mental health professionals may be 
responsible for implementation of seclusion and restraint procedures in 
an emergency situation.
    (5) Admission process. The PHP shall maintain written policies and 
procedures to ensure that prior to an admission, a determination is 
made, and approved pursuant to CHAMPUS preauthorization requirements, 
that the admission is medically and/or psychologically necessary and the 
program is appropriate to meet the patient's needs. Medical and/or 
psychological necessity determinations shall be rendered by qualified 
mental health professionals who meet CHAMPUS requirements for individual 
professional providers and who are permitted by law and by the facility 
to refer patients for admission.
    (6) Assessments. The professional staff of the PHP shall complete a 
multidisciplinary assessment which includes, but is not limited to 
physical health, psychological health, physiological, developmental, 
family, educational, spiritual, and skills assessment of each patient 
admitted. Unless otherwise specified, all required clinical assessment 
are completed prior to development of the interdisciplinary treatment 
plan.
    (7) Clinical formulation. A qualified mental health provider of the 
PHP will complete a clinical formulation on all patients. The clinical 
formulation will be reviewed and approved by the responsible individual 
professional provider and will incorporate significant findings from 
each of the multidisciplinary assessments. It will provide the basis for 
development of an interdisciplinary treatment plan.
    (8) Treatment planning. A qualified mental health professional with 
admitting privileges shall be responsible for the development, 
supervision, implementation, and assessment of a written, 
individualized, interdisciplinary plan of treatment, which shall be 
completed by the fifth day following admission to a full-day PHP, or by 
the seventh day following admission to a half-day PHP, and shall include 
measurable and observable goals for incremental progress and discharge. 
The treatment plan shall undergo review at least every two weeks, or 
when major changes occur in treatment.
    (9) Discharge and transition planning. The PHP shall develop an 
individualized transition plan which addresses anticipated needs of the 
patient at discharge. The transition plan involves determining necessary 
modifications in the treatment plan, facilitating the

[[Page 175]]

termination of treatment, and identifying resources for maintaining 
therapeutic stability following discharge.
    (10) Clinical documentation. Clinical records shall be maintained on 
each patient to plan care and treatment and provide ongoing evaluation 
of the patient's progress. All care is documented and each clinical 
record contains at least the following: demographic data, consent forms, 
pertinent legal documents, all treatment plans and patient assessments, 
consultation and laboratory reports, physician orders, progress notes, 
and a discharge summary. All documentation will adhere to applicable 
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3). 
An appropriately qualified records administrator or technician will 
supervise and maintain the quality of the records. These requirements 
are in addition to other records requirements of this part, and 
documentation requirements of the Joint Commission on Accreditation of 
Health Care Organization.
    (11) Progress notes. PHPs shall document the course of treatment for 
patients and families using progress notes which provide information to 
review, analyze, and modify the treatment plans. Progress notes are 
legible, contemporaneous, sequential, signed and dated and adhere to 
applicable provisions of the Manual for Mental Health, Chemical 
Dependency, and Mental Retardation/Developmental Disabilities Services 
and requirements set forth in section 199.7(b)(3).
    (12) Therapeutic services.
    (i) Individual, group, and family therapy are provided to all 
patients, consistent with each patient's treatment plan by qualified 
mental health providers.
    (ii) A range of therapeutic activities, directed and staffed by 
qualified personnel, are offered to help patients meet the goals of the 
treatment plan.
    (iii) Educational services are provided or arranged that are 
appropriate to the patient's needs.
    (13) Ancillary services. A full range of ancillary services are 
provided. Emergency services include policies and procedures for 
handling emergencies with qualified personnel and written agreements 
with each facility providing these services. Other ancillary services 
include physical health, pharmacy and dietary services.
    (C) Standards for physical plant and environment.
    (1) Physical environment. The buildings and grounds of the PHP shall 
be maintained so as to avoid health and safety hazards, be supportive of 
the services provided to patients, and promote patient comfort, dignity, 
privacy, personal hygiene, and personal safety.
    (2) Physical plant safety. The PHP shall be of permanent 
construction and maintained in a manner that protects the lives and 
ensures the physical safety of patients, staff, and visitors, including 
conformity with all applicable building, fire, health, and safety codes.
    (3) Disaster planning. The PHP shall maintain and rehearse written 
plans for taking care of casualties and handling other consequences 
arising from internal and external disasters.
    (D) Standards for evaluation system.
    (1) Quality assessment and improvement. The PHP shall develop and 
implement a comprehensive quality assurance and quality improvement 
program that monitors the quality, efficiency, appropriateness, and 
effectiveness of care, treatments, and services the PHP provides for 
patients and their families. Explicit clinical indicators shall be used 
to be used to evaluate all functions of the PHP and contribute to an 
ongoing process of program improvement. The clinical director is 
responsible for developing and implementing quality assessment and 
improvement activities throughout the facility.
    (2) Utilization review. The PHP shall implement a utilization review 
process, pursuant to a written plan approved by the professional staff, 
the administration and the governing body, that assesses distribution of 
services, clinical necessity of treatment, appropriateness of admission, 
continued stay, and timeliness of discharge, as part of an overall 
effort to provide quality patient care in a cost-effective manner. 
Findings of the utilization review process are used as a basis for 
revising the plan of operation, including a review of staff 
qualifications and staff composition.
    (3) Patient records. The PHP shall implement a process, including 
regular

[[Page 176]]

monthly reviews of a representative sample of patient records, to 
determine completeness, accuracy, timeliness of entries, appropriate 
signatures, and pertinence of clinical entries. Conclusions, 
recommendations, actions taken, and the results of actions are monitored 
and reported.
    (4) Drug utilization review. The PHP shall implement a comprehensive 
process for the monitoring and evaluating of the prophylactic, 
therapeutic, and empiric use of drugs to assure that medications are 
provided appropriately, safely, and effectively.
    (5) Risk management. The PHP shall implement a comprehensive risk 
management program, fully coordinated with other aspects of the quality 
assurance and quality improvement program, to prevent and control risks 
to patients and staff, and to minimize costs associated with clinical 
aspects of patient care and safety.
    (6) Infection control. The PHP shall implement a comprehensive 
system for the surveillance, prevention, control, and reporting of 
infections acquired or brought into the facility.
    (7) Safety. The PHP shall implement an effective program to assure a 
safe environment for patients, staff, and visitors, including an 
incident reporting system, disaster training and safety education, a 
continuous safety surveillance system, and an active multidisciplinary 
safety committee.
    (8) Facility evaluation. The PHP annually evaluates accomplishment 
of the goals and objectives of each clinical program component or 
facility service of the PHP and reports findings and recommendations to 
the governing body.
    (E) Participation agreement requirements. In addition to other 
requirements set forth in paragraph (b)(4)(xii) of this section, in 
order for the services of a PHP to be authorized, the PHP shall have 
entered into a Participation Agreement with OCHAMPUS. The period of a 
Participation Agreement shall be specified in the agreement, and will 
generally be for not more than five years. On October 1, 1995, the PHP 
shall not be considered to be a CHAMPUS authorized provider and CHAMPUS 
payments shall not be made for services provided by the PHP until the 
date the participation agreement is signed by the Director, OCHAMPUS. In 
addition to review of a facility's application and supporting 
documentation, an on-site inspection by OCHAMPUS authorized personnel 
may be required prior to signing a participation agreement. The 
Participation Agreement shall include at least the following 
requirements:
    (1) Render partial hospitalization program services to eligible 
CHAMPUS beneficiaries in need of such services, in accordance with the 
participation agreement and CHAMPUS regulation.
    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14, or such other method as determined by the 
Director, OCHAMPUS;
    (3) Accept the CHAMPUS all-inclusive per diem rate as payment in 
full and collect from the CHAMPUS beneficiary or the family of the 
CHAMPUS beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of CHAMPUS;
    (4) Make all reasonable efforts acceptable to the Director, 
OCHAMPUS, to collect those amounts, which represent the beneficiary's 
liability, as defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to CHAMPUS;
    (6) Submit claims for services provided to CHAMPUS beneficiaries at 
least every 30 days (except to the extent a delay is necessitated by 
efforts to first collect from other health insurance). If claims are not 
submitted at least every 30 days, the PHP agrees not to bill the 
beneficiary or the beneficiary's family for any amounts disallowed by 
CHAMPUS;
    (7) Certify that:
    (i) It is and will remain in compliance with the provisions of 
paragraph (b)(4)(xii) of this section establishing standards for 
psychiatric partial hospitalization programs;
    (ii) It has conducted a self assessment of the facility's compliance 
with the CHAMPUS Standards for Psychiatric Partial Hospitalization 
Programs, as issued by the Director, OCHAMPUS,

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and notified the Director, OCHAMPUS of any matter regarding which the 
facility is not in compliance with such standards; and
    (iii) It will maintain compliance with the CHAMPUS Standards for 
Psychiatric Partial Hospitalization Programs, as issued by the Director, 
OCHAMPUS, except for any such standards regarding which the facility 
notifies the Director, OCHAMPUS that it is not in compliance.
    (8) Designate an individual who will act as liaison for CHAMPUS 
inquiries. The PHP shall inform OCHAMPUS in writing of the designated 
individual;
    (9) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS, 
certified by an independent accounting firm or other agency as 
authorized by the Director, OCHAMPUS;
    (10) Comply with all requirements of this section applicable to 
institutional providers generally concerning preauthorization, 
concurrent care review, claims processing, beneficiary liability, double 
coverage, utilization and quality review and other matters;
    (11) Grant the Director, OCHAMPUS, or designee, the right to conduct 
quality assurance audits or accounting audits with full access to 
patients and records (including records relating to patients who are not 
CHAMPUS beneficiaries) to determine the quality and cost-effectiveness 
of care rendered. The audits may be conducted on a scheduled or 
unscheduled (unannounced) basis. This right to audit/review includes, 
but is not limited to:
    (i) Examination of fiscal and all other records of the PHP which 
would confirm compliance with the participation agreement and 
designation as an authorized CHAMPUS PHP provider;
    (ii) Conducting such audits of PHP records including clinical, 
financial, and census records, as may be necessary to determine the 
nature of the services being provided, and the basis for charges and 
claims against the United States for services provided CHAMPUS 
beneficiaries;
    (iii) Examining reports of evaluations and inspections conducted by 
federal, state and local government, and private agencies and 
organizations;
    (iv) Conducting on-site inspections of the facilities of the PHP and 
interreviewing employees, members of the staff, contractors, board 
members, volunteers, and patients, as required;
    (v) Audits conducted by the United States General Account Office.
    (F) Other requirements applicable to PHPs.
    (1) Even though a PHP may qualify as a CHAMPUS-authorized provider 
and may have entered into a participation agreement with CHAMPUS, 
payment by CHAMPUS for particular services provided is contingent upon 
the PHP also meeting all conditions set forth in section 199.4 of this 
part.
    (2) The PHP shall provide patient services to CHAMPUS beneficiaries 
in the same manner it provides inpatient services to all other patients. 
The PHP may not discriminate against CHAMPUS beneficiaries in any 
manner, including admission practices, placement in special or separate 
wings or rooms, or provisions of special or limited treatment.
    (3) The PHP shall assure that all certifications and information 
provided to the Director, OCHAMPUS incident to the process of obtaining 
and retaining authorized provider status is accurate and that is has no 
material errors or omissions. In the case of any misrepresentations, 
whether by inaccurate information being provided or material facts 
withheld, authorized provider status will be denied or terminated, and 
the PHP will be ineligible for consideration for authorized provider 
status for a two year period.
    (xiii) Hospice programs. Hospice programs must be Medicare approved 
and meet all Medicare conditions of participation (42 CFR part 418) in 
relation to CHAMPUS patients in order to receive payment under the 
CHAMPUS program. A hospice program may be found to be out of compliance 
with a particular Medicare condition of participation and still 
participate in the CHAMPUS as long as the hospice is allowed continued 
participation in Medicare while the condition of noncompliance is being 
corrected. The hospice program can be either a public agency or private 
organization (or a subdivision thereof) which:
    (A) Is primarily engaged in providing the care and services 
described under

[[Page 178]]

Sec. 199.4(e)(19) and makes such services available on a 24-hour basis.
    (B) Provides bereavement counseling for the immediate family or 
terminally ill individuals.
    (C) Provides for such care and services in individuals' homes, on an 
outpatient basis, and on a short-term inpatient basis, directly or under 
arrangements made by the hospice program, except that the agency or 
organization must:
    (1) Ensure that substantially all the core services are routinely 
provided directly by hospice employees.
    (2) Maintain professional management responsibility for all services 
which are not directly furnished to the patient, regardless of the 
location or facility in which the services are rendered.
    (3) Provide assurances that the aggregate number of days of 
inpatient care provided in any 12-month period does not exceed 20 
percent of the aggregate number of days of hospice care during the same 
period.
    (4) Have an interdisciplinary group composed of the following 
personnel who provide the care and services described under Sec. 
199.4(e)(19) and who establish the policies governing the provision of 
such care/services:
    (i) A physician;
    (ii) A registered professional nurse;
    (iii) A social worker; and
    (iv) A pastoral or other counselor.
    (5) Maintain central clinical records on all patients.
    (6) Utilize volunteers.
    (7) The hospice and all hospice employees must be licensed in 
accordance with applicable Federal, State and local laws and 
regulations.
    (8) The hospice must enter into an agreement with CHAMPUS in order 
to be qualified to participate and to be eligible for payment under the 
program. In this agreement the hospice and CHAMPUS agree that the 
hospice will:
    (i) Not charge the beneficiary or any other person for items or 
services for which the beneficiary is entitled to have payment made 
under the CHAMPUS hospice benefit.
    (ii) Be allowed to charge the beneficiary for items or services 
requested by the beneficiary in addition to those that are covered under 
the CHAMPUS hospice benefit.
    (9) Meet such other requirements as the Secretary of Defense may 
find necessary in the interest of the health and safety of the 
individuals who are provided care and services by such agency or 
organization.
    (xiv) Substance use disorder rehabilitation facilities. Paragraph 
(b)(4)(xiv) of this section establishes standards and requirements for 
substance use order rehabilitation facilities (SUDRF). This includes 
both inpatient rehabilitation centers for the treatment of substance use 
disorders and partial hospitalization centers for the treatment of 
substance use disorders.
    (A) Organization and administration.
    (1) Definition of inpatient rehabilitation center. An inpatient 
rehabilitation center is a facility, or distinct part of a facility, 
that provides medically monitored, interdisciplinary addiction-focused 
treatment to beneficiaries who have psychoactive substance use 
disorders. Qualified health care professionals provide 24-hour, seven-
day-per-week, medically monitored assessment, treatment, and evaluation. 
An inpatient rehabilitation center is appropriate for patients whose 
addiction-related symptoms, or concomitant physical and emotional/
behavioral problems reflect persistent dysfunction in several major life 
areas. Inpatient rehabilitation is differentiated from:
    (i) Acute psychoactive substance use treatment and from treatment of 
acute biomedical/emotional/behavioral problems; which problems are 
either life-threatening and/or severely incapacitating and often occur 
within the context of a discrete episode of addiction-related biomedical 
or psychiatric dysfunction;
    (ii) A partial hospitalization center, which serves patients who 
exhibit emotional/behavioral dysfunction but who can function in the 
community for defined periods of time with support in one or more of the 
major life areas;
    (iii) A group home, sober-living environment, halfway house, or 
three-quarter way house;
    (iv) Therapeutic schools, which are educational programs 
supplemented by addiction-focused services;

[[Page 179]]

    (v) Facilities that treat patients with primary psychiatric 
diagnoses other than psychoactive substance use or dependence; and
    (vi) Facilities that care for patients with the primary diagnosis of 
mental retardation or developmental disability.
    (2) Definition of partial hospitalization center for the treatment 
of substance use disorders. A partial hospitalization center for the 
treatment of substance use disorders is an addiction-focused service 
that provides active treatment to adolescents between the ages of 13 and 
18 or adults aged 18 and over. Partial hospitalization is a generic term 
for day, evening, or weekend programs that treat patients with 
psychoactive substance use disorders according to a comprehensive, 
individualized, integrated schedule of care. A partial hospitalization 
center is organized, interdisciplinary, and medically monitored. Partial 
hospitalization is appropriate for those whose addiction-related 
symptoms or concomitant physical and emotional/behavioral problems can 
be managed outside the hospital environment for defined periods of time 
with support in one or more of the major life areas.
    (3) Eligibility.
    (i) Every inpatient rehabilitation center and partial 
hospitalization center for the treatment of substance use disorders must 
be certified pursuant to CHAMPUS certification standards. Such standards 
shall incorporate the basic standards set forth in paragraphs 
(b)(4)(xiv) (A) through (D) of this section, and shall include such 
additional elaborative criteria and standards as the Director, OCHAMPUS 
determines are necessary to implement the basic standards.
    (ii) To be eligible for CHAMPUS certification, the SUDRF is required 
to be licensed and fully operational (with a minimum patient census of 
the lesser of: six patients or 30 percent of bed capacity) for a period 
of at least six months and operate in substantial compliance with state 
and federal regulations.
    (iii) The SUDRF is currently accredited by the Joint Commission on 
Accreditation of Healthcare Organizations under the Accreditation Manual 
for Mental Health, Chemical Dependency, and Mental Retardation/
Developmental Disabilities Services, or by the Commission on 
Accreditation of Rehabilitation Facilities as an alcoholism and other 
drug dependency rehabilitation program under the Standards Manual for 
Organizations Serving People with Disabilities, or other designated 
standards approved by the Director, OCHAMPUS.
    (iv) The SUDRF has a written participation agreement with OCHAMPUS. 
On October 1, 1995, the SUDRF is not considered a CHAMPUS-authorized 
provider, and CHAMPUS benefits are not paid for services provided until 
the date upon which a participation agreement is signed by the Director, 
OCHAMPUS.
    (4) Governing body.
    (i) The SUDRF shall have a governing body which is responsible for 
the policies, bylaws, and activities of the facility. If the SUDRF is 
owned by a partnership or single owner, the partners or single owner are 
regarded as the governing body. The facility will provide an up-to-date 
list of names, addresses, telephone numbers and titles of the members of 
the governing body.
    (ii) The governing body ensures appropriate and adequate services 
for all patients and oversees continuing development and improvement of 
care. Where business relationships exist between the governing body and 
facility, appropriate conflict-of-interest policies are in place.
    (iii) Board members are fully informed about facility services and 
the governing body conducts annual reviews of its performance in meeting 
purposes, responsibilities, goals and objectives.
    (5) Chief executive officer. The chief executive officer, appointed 
by and subject to the direction of the governing body, shall assume 
overall administrative responsibility for the operation of the facility 
according to governing body policies. The chief executive officer shall 
have five years' administrative experience in the field of mental health 
or addictions. On October 1, 1997 the CEO shall possess a degree in 
business administration, public health, hospital administration, 
nursing, social work, or psychology, or

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meet similar educational requirements as prescribed by the Director, 
OCHAMPUS.
    (6) Clinical Director. The clinical director, appointed by the 
governing body, shall be a qualified psychiatrist or doctoral level 
psychologist who meets applicable CHAMPUS requirements for individual 
professional providers and is licensed to practice in the state where 
the SUDRF is located. The clinical director shall possess requisite 
education and experience, including credentials applicable under state 
practice and licensing laws appropriate to the professional discipline. 
The clinical director shall satisfy at least one of the following 
requirements: certification by the American Society of Addiction 
Medicine; one year or 1,000 hours of experience in the treatment of 
psychoactive substance use disorders; or is a psychiatrist or doctoral 
level psychologist with experience in the treatment of substance use 
disorders. The clinical director shall be responsible for planning, 
development, implementation, and monitoring of all clinical activities.
    (7) Medical director. The medical director, appointed by the 
governing body, shall be licensed to practice medicine in the state 
where the center is located and shall possess requisite education 
including graduation from an accredited school of medicine or 
osteopathy. The medical director shall satisfy at least one of the 
following requirements: certification by the American Society of 
Addiction Medicine; one year or 1,000 hours of experience in the 
treatment of psychoactive substance use disorders; or is a psychiatrist 
with experience in the treatment of substance use disorders. The medical 
director shall be responsible for the planning, development, 
implementation, and monitoring of all activities relating to medical 
treatment of patients. If qualified, the Medical Director may also serve 
as Clinical Director.
    (8) Medical or professional staff organization. The governing body 
shall establish a medical or professional staff organization to assure 
effective implementation of clinical privileging, professional conduct 
rules, and other activities directly affecting patient care.
    (9) Personnel policies and records. The SUDRF shall maintain written 
personnel policies, updated job descriptions, personnel records to 
assure the selection of qualified personnel and successful job 
performance of those personnel.
    (10) Staff development. The SUDRF shall provide appropriate training 
and development programs for administrative, support, and direct care 
staff.
    (11) Fiscal accountability. The SUDRF shall assure fiscal 
accountability to applicable government authorities and patients.
    (12) Designated teaching facilities. Students, residents, interns, 
or fellows providing direct clinical care are under the supervision of a 
qualified staff member approved by an accredited university or approved 
training program. The teaching program is approved by the Director, 
OCHAMPUS.
    (13) Emergency reports and records. The facility notifies OCHAMPUS 
of any serious occurrence involving CHAMPUS beneficiaries.
    (B) Treatment services.
    (1) Staff composition.
    (i) The SUDRF shall follow written plans which assure that medical 
and clinical patient needs will be appropriately addressed during all 
hours of operation by a sufficient number of fully qualified (including 
license, registration or certification requirements, educational 
attainment, and professional experience) health care professionals and 
support staff in the respective disciplines. Clinicians providing 
individual, group and family therapy meet CHAMPUS requirements as 
qualified mental health providers and operate within the scope of their 
licenses. The ultimate authority for planning, development, 
implementation, and monitoring of all clinical activities is vested in a 
psychiatrist or doctoral level clinical psychologist. The management of 
medical care is vested in a physician.
    (ii) The SUDRF shall establish and follow written plans to assure 
adequate staff coverage during all hours of operation of the center, 
including physician availability and other professional staff coverage 
24 hours per day, seven days per week for an inpatient rehabilitation 
center and during all hours of

[[Page 181]]

operation for a partial hospitalization center.
    (2) Staff qualifications. Within the scope of its programs and 
services, the SUDRF has a sufficient number of professional, 
administrative, and support staff to address the medical and clinical 
needs of patients and to coordinate the services provided. SUDRFs that 
employ individuals with master's or doctoral level degrees in a mental 
health discipline who do not meet the licensure, certification and 
experience requirements for a qualified mental health provider but are 
actively working toward licensure or certification, may provide services 
within the DRG, provided the individual works under the clinical 
supervision of a fully qualified mental health provider employed by the 
SUDRF.
    (3) Patient rights.
    (i) The SUDRF shall provide adequate protection for all patient 
rights, safety, confidentiality, informed consent, grievances, and 
personal dignity.
    (ii) The SUDRF has a written policy regarding patient abuse and 
neglect.
    (iii) SUDRF marketing and advertising meets professional standards.
    (4) Behavioral management. When a SUDRF uses a behavioral management 
program, the center shall adhere to a comprehensive, written plan of 
behavioral management, developed by the clinical director and the 
medical or professional staff and approved by the governing body. It 
shall be based on positive reinforcement methods and, except for 
infrequent use of temporary physical holds or time outs, does not 
include the use of restraint or seclusion. Only trained and clinically 
privileged RNs or qualified mental health professionals may be 
responsible for the implementation of seclusion and restraint in an 
emergency situation.
    (5) Admission process. The SUDRF shall maintain written policies and 
procedures to ensure that, prior to an admission, a determination is 
made, and approved pursuant to CHAMPUS preauthorization requirements, 
that the admission is medically and/or psychologically necessary and the 
program is appropriate to meet the patient's needs. Medical and/or 
psychological necessity determinations shall be rendered by qualified 
mental health professionals who meet CHAMPUS requirements for individual 
professional providers and who are permitted by law and by the facility 
to refer patients for admission.
    (6) Assessment. The professional staff of the SUDRF shall provide a 
complete, multidisciplinary assessment of each patient which includes, 
but is not limited to, medical history, physical health, nursing needs, 
alcohol and drug history, emotional and behavioral factors, age-
appropriate social circumstances, psychological condition, education 
status, and skills. Unless otherwise specified, all required clinical 
assessments are completed prior to development of the multidisciplinary 
treatment plan.
    (7) Clinical formulation. A qualified mental health care 
professional of the SUDRF will complete a clinical formulation on all 
patients. The clinical formulation will be reviewed and approved by the 
responsible individual professional provider and will incorporate 
significant findings from each of the multidisciplinary assessments. It 
will provide the basis for development of an interdisciplinary treatment 
plan.
    (8) Treatment planning. A qualified health care professional with 
admitting privileges shall be responsible for the development, 
supervision, implementation, and assessment of a written, 
individualized, and interdisciplinary plan of treatment, which shall be 
completed within 10 days of admission to an inpatient rehabilitation 
center or by the fifth day following admission to full day partial 
hospitalization center, and by the seventh day of treatment for half day 
partial hospitalization. The treatment plan shall include individual, 
measurable, and observable goals for incremental progress towards the 
treatment plan objectives and goals and discharge. A preliminary 
treatment plan is completed within 24 hours of admission and includes at 
least a physician's admission note and orders. The master treatment plan 
is regularly reviewed for effectiveness and revised when major changes 
occur in treatment.

[[Page 182]]

    (9) Discharge and transition planning. The SUDRF shall maintain a 
transition planning process to address adequately the anticipated needs 
of the patient prior to the time of discharge.
    (10) Clinical documentation. Clinical records shall be maintained on 
each patient to plan care and treatment and provide ongoing evaluation 
of the patient's progress. All care is documented and each clinical 
record contains at least the following: demographic data, consent forms, 
pertinent legal documents, all treatment plans and patient assessments, 
consultation and laboratory reports, physician orders, progress notes, 
and a discharge summary. All documentation will adhere to applicable 
provisions of the JCAHO and requirements set forth in Sec. 199.7(b)(3). 
An appropriately qualified records administrator or technician will 
supervise and maintain the quality of the records. These requirements 
are in addition to other records requirements of this part, and 
provisions of the JCAHO Manual for Mental Health, Chemical Dependency, 
and Mental Retardation/Developmental Disabilities Services.
    (11) Progress notes. Timely and complete progress notes shall be 
maintained to document the course of treatment for the patient and 
family.
    (12) Therapeutic services.
    (i) Individual, group, and family psychotherapy and addiction 
counseling services are provided to all patients, consistent with each 
patient's treatment plan by qualified mental health providers.
    (ii) A range of therapeutic activities, directed and staffed by 
qualified personnel, are offered to help patients meet the goals of the 
treatment plan.
    (iii) Therapeutic educational services are provided or arranged that 
are appropriate to the patient's educational and therapeutic needs.
    (13) Ancillary services. A full range of ancillary services is 
provided. Emergency services include policies and procedures for 
handling emergencies with qualified personnel and written agreements 
with each facility providing the service. Other ancillary services 
include physical health, pharmacy and dietary services.
    (C) Standards for physical plant and environment.
    (1) Physical environment. The buildings and grounds of the SUDRF 
shall be maintained so as to avoid health and safety hazards, be 
supportive of the services provided to patients, and promote patient 
comfort, dignity, privacy, personal hygiene, and personal safety.
    (2) Physical plant safety. The SUDRF shall be maintained in a manner 
that protects the lives and ensures the physical safety of patients, 
staff, and visitors, including conformity with all applicable building, 
fire, health, and safety codes.
    (3) Disaster planning. The SUDRF shall maintain and rehearse written 
plans for taking care of casualties and handling other consequences 
arising from internal or external disasters.
    (D) Standards for evaluation system.
    (1) Quality assessment and improvement. The SUDRF develop and 
implement a comprehensive quality assurance and quality improvement 
program that monitors the quality, efficiency, appropriateness, and 
effectiveness of the care, treatments, and services it provides for 
patients and their families, utilizing clinical indicators of 
effectiveness to contribute to an ongoing process of program 
improvement. The clinical director is responsible for developing and 
implementing quality assessment and improvement activities throughout 
the facility.
    (2) Utilization review. The SUDRF shall implement a utilization 
review process, pursuant to a written plan approved by the professional 
staff, the administration, and the governing body, that assesses the 
appropriateness of admissions, continued stay, and timeliness of 
discharge as part of an effort to provide quality patient care in a 
cost-effective manner. Findings of the utilization review process are 
used as a basis for revising the plan of operation, including a review 
of staff qualifications and staff composition.
    (3) Patient records review. The center shall implement a process, 
including monthly reviews of a representative sample of patient records, 
to determine the completeness and accuracy of the patient records and 
the timeliness and pertinence of record entries, particularly with 
regard to regular recording of progress/non-progress in treatment plan.

[[Page 183]]

    (4) Drug utilization review. An inpatient rehabilitation center and, 
when applicable, a partial hospitalization center, shall implement a 
comprehensive process for the monitoring and evaluating of the 
prophylactic, therapeutic, and empiric use of drugs to assure that 
medications are provided appropriately, safely, and effectively.
    (5) Risk management. The SUDRF shall implement a comprehensive risk 
management program, fully coordinated with other aspects of the quality 
assurance and quality improvement program, to prevent and control risks 
to patients and staff and costs associated with clinical aspects of 
patient care and safety.
    (6) Infection control. The SUDRF shall implement a comprehensive 
system for the surveillance, prevention, control, and reporting of 
infections acquired or brought into the facility.
    (7) Safety. The SUDRF shall implement an effective program to assure 
a safe environment for patients, staff, and visitors.
    (8) Facility evaluation. The SUDRF annually evaluates accomplishment 
of the goals and objectives of each clinical program and service of the 
SUDRF and reports findings and recommendations to the governing body.
    (E) Participation agreement requirements. In addition to other 
requirements set forth in paragraph (b)(4)(xiv) of this section, in 
order for the services of an inpatient rehabilitation center or partial 
hospitalization center for the treatment of substance abuse disorders to 
be authorized, the center shall have entered into a Participation 
Agreement with OCHAMPUS. The period of a Participation Agreement shall 
be specified in the agreement, and will generally be for not more than 
five years. On October 1, 1995, the SUDRF shall not be considered to be 
a CHAMPUS authorized provider and CHAMPUS payments shall not be made for 
services provided by the SUDRF until the date the participation 
agreement is signed by the Director, OCHAMPUS. In addition to review of 
the SUDRFS application and supporting documentation, an on-site visit by 
OCHAMPUS representatives may be part of the authorization process. In 
addition, such a Participation Agreement may not be signed until an 
SUDRF has been licensed and operational for at least six months. The 
Participation Agreement shall include at least the following 
requirements:
    (1) Render applicable services to eligible CHAMPUS beneficiaries in 
need of such services, in accordance with the participation agreement 
and CHAMPUS regulation;
    (2) Accept payment for its services based upon the methodology 
provided in Sec. 199.14, or such other method as determined by the 
Director, OCHAMPUS;
    (3) Accept the CHAMPUS-determined rate as payment in full and 
collect from the CHAMPUS beneficiary or the family of the CHAMPUS 
beneficiary only those amounts that represent the beneficiary's 
liability, as defined in Sec. 199.4, and charges for services and 
supplies that are not a benefit of CHAMPUS;
    (4) Make all reasonable efforts acceptable to the Director, 
OCHAMPUS, to collect those amounts which represent the beneficiary's 
liability, as defined in Sec. 199.4;
    (5) Comply with the provisions of Sec. 199.8, and submit claims 
first to all health insurance coverage to which the beneficiary is 
entitled that is primary to CHAMPUS;
    (6) Furnish OCHAMPUS with cost data, as requested by OCHAMPUS, 
certified to by an independent accounting firm or other agency as 
authorized by the Director, OCHAMPUS;
    (7) Certify that:
    (i) It is and will remain in compliance with the provisions of 
paragraph (b)(4)(xiv) of the section establishing standards for 
substance use disorder rehabilitation facilities;
    (ii) It has conducted a self assessment of the SUDRF'S compliance 
with the CHAMPUS Standards for Substance Use Disorder Rehabilitation 
Facilities, as issued by the Director, OCHAMPUS, and notified the 
Director, OCHAMPUS of any matter regarding which the facility is not in 
compliance with such standards; and
    (iii) It will maintain compliance with the CHAMPUS Standards for 
Substance Use Disorder Rehabilitation Facilities, as issued by the 
Director, OCHAMPUS, except for any such standards regarding which the 
facility

[[Page 184]]

notifies the Director, OCHAMPUS that it is not in compliance.
    (8) Grant the Director, OCHAMPUS, or designee, the right to conduct 
quality assurance audits or accounting audits with full access to 
patients and records (including records relating to patients who are not 
CHAMPUS beneficiaries) to determine the quality and cost effectiveness 
of care rendered. The audits may be conducted on a scheduled or 
unscheduled (unannounced) basis. This right to audit/review included, 
but is not limited to:
    (i) Examination of fiscal and all other records of the center which 
would confirm compliance with the participation agreement and 
designation as an authorized CHAMPUS provider;
    (ii) Conducting such audits of center records including clinical, 
financial, and census records, as may be necessary to determine the 
nature of the services being provided, and the basis for charges and 
claims against the United States for services provided CHAMPUS 
beneficiaries;
    (iii) Examining reports of evaluations and inspection conducted by 
federal, state and local government, and private agencies and 
organizations;
    (iv) Conducting on-site inspections of the facilities of the SUDRF 
and interviewing employees, members of the staff, contractors, board 
members, volunteers, and patients, as required.
    (v) Audits conducted by the United States General Accounting Office.
    (F) Other requirements applicable to substance use disorder 
rehabilitation facilities.
    (1) Even though a SUDRF may qualify as a CHAMPUS-authorized provider 
and may have entered into a participation agreement with CHAMPUS, 
payment by CHAMPUS for particular services provided is contingent upon 
the SUDRF also meeting all conditions set forth in Sec. 199.4.
    (2) The center shall provide inpatient services to CHAMPUS 
beneficiaries in the same manner it provides services to all other 
patients. The center may not discriminate against CHAMPUS beneficiaries 
in any manner, including admission practices, placement in special or 
separate wings or rooms, or provisions of special or limited treatment.
    (3) The substance use disorder facility shall assure that all 
certifications and information provided to the Director, OCHAMPUS 
incident to the process of obtaining and retaining authorized provider 
status is accurate and that it has no material errors or omissions. In 
the case of any misrepresentations, whether by inaccurate information 
being provided or material facts withheld, authorized provider status 
will be denied or terminated, and the facility will be ineligible for 
consideration forauthorized provider status for a two year period.
    (xv) Home health agencies (HHAs). HHAs must be Medicare approved and 
meet all Medicare conditions of participation under sections 1861(o) and 
1891 of the Social Security Act (42 U.S.C. 1395x(o) and 1395bbb) and 42 
CFR part 484 in relation to TRICARE beneficiaries in order to receive 
payment under the TRICARE program. An HHA may be found to be out of 
compliance with a particular Medicare condition of participation and 
still participate in the TRICARE program as long as the HHA is allowed 
continued participation in Medicare while the condition of noncompliance 
is being corrected. An HHA is a public or private organization, or a 
subdivision of such an agency or organization, that meets the following 
requirements:
    (A) Engaged in providing skilled nursing services and other 
therapeutic services, such as physical therapy, speech-language 
pathology services, or occupational therapy, medical services, and home 
health aide services.
    (1) Makes available part-time or intermittent skilled nursing 
services and at least one other therapeutic service on a visiting basis 
in place of residence used as a patient's home.
    (2) Furnishes at least one of the qualifying services directly 
through agency employees, but may furnish the second qualifying service 
and additional services under arrangement with another HHA or 
organization.
    (B) Policies established by a professional group associated with the 
agency or organization (including at least one physician and one 
registered nurse) to govern the services and provides for supervision of 
such services by a physician or a registered nurse.

[[Page 185]]

    (C) Maintains clinical records for all patients.
    (D) Licensed in accordance with State and local law or is approved 
by the State or local licensing agency as meeting the licensing 
standards, where applicable.
    (E) Enters into an agreement with TRICARE in order to participate 
and to be eligible for payment under the program. In this agreement the 
HHA and TRICARE agree that the HHA will:
    (1) Not charge the beneficiary or any other person for items or 
services for which the beneficiary is entitled to have payment under the 
TRICARE HHA prospective payment system.
    (2) Be allowed to charge the beneficiary for items or services 
requested by the beneficiary in addition to those that are covered under 
the TRICARE HHA prospective payment system.
    (F) Abide by the following consolidated billing requirements:
    (1) The HHA must submit all TRICARE claims for all services, 
excluding durable medical equipment (DME), while the beneficiary is 
under the home health plan without regard to whether or not the item or 
service was furnished by the HHA, by others under arrangement with the 
HHA, or under any other contracting or consulting arrangement.
    (2) Separate payment will be made for DME items and services 
provided under the home health benefit which are under the DME fee 
schedule. DME is excluded from the consolidated billing requirements.
    (3) Home health services included in consolidated billing are:
    (i) Part-time or intermittent skilled nursing;
    (ii) Part-time or intermittent home health aide services;
    (iii) Physical therapy, occupational therapy and speech-language 
pathology;
    (iv) Medical social services;
    (v) Routine and non-routine medical supplies;
    (vi) A covered osteoporosis drug (not paid under PPS rate) but 
excluding other drugs and biologicals;
    (vii) Medical services provided by an intern or resident-in-training 
of a hospital, under an approved teaching program of the hospital in the 
case of an HHA that is affiliated or under common control of a hospital;
    (viii) Services at hospitals, SNFs or rehabilitation centers when 
they involve equipment too cumbersome to bring home.
    (G) Meet such other requirements as the Secretary of Health and 
Human Services and/or Secretary of Defense may find necessary in the 
interest of the health and safety of the individuals who are provided 
care and services by such agency or organization.
    (c) Individual professional providers of care--(1) General--(i) 
Purpose. This individual professional provider class is established to 
accommodate individuals who are recognized by 10 U.S.C. 1079(a) as 
authorized to assess or diagnose illness, injury, or bodily malfunction 
as a prerequisite for CHAMPUS cost-share of otherwise allowable related 
preventive or treatment services or supplies, and to accommodate such 
other qualified individuals who the Director, OCHAMPUS, or designee, may 
authorize to render otherwise allowable services essential to the 
efficient implementation of a plan-of-care established and managed by a 
10 U.S.C. 1079(a) authorized professional.
    (ii) Professional corporation affiliation or association membership 
permitted. Paragraph (c) of this section applies to those individual 
health care professionals who have formed a professional corporation or 
association pursuant to applicable state laws. Such a professional 
corporation or association may file claims on behalf of a CHAMPUS-
authorized individual professional provider and be the payee for any 
payment resulting from such claims when the CHAMPUS-authorized 
individual certifies to the Director, OCHAMPUS, or designee, in writing 
that the professional corporation or association is acting on the 
authorized individual's behalf.
    (iii) Scope of practice limitation. For CHAMPUS cost-sharing to be 
authorized, otherwise allowable services provided by a CHAMPUS-
authorized individual professional provider shall be within the scope of 
the individual's license as regulated by the applicable state practice 
act of the state where the individual rendered the service to the 
CHAMPUS beneficiary or shall be

[[Page 186]]

within the scope of the test which was the basis for the individual's 
qualifying certification.
    (iv) Employee status exclusion. An individual employed directly, or 
indirectly by contract, by an individual or entity to render 
professional services otherwise allowable by this part is excluded from 
provider status as established by this paragraph (c) for the duration of 
each employment.
    (v) Training status exclusion. Individual health care professionals 
who are allowed to render health care services only under direct and 
ongoing supervision as training to be credited towards earning a 
clinical academic degree or other clinical credential required for the 
individual to practice independently are excluded from provider status 
as established by this paragraph (c) for the duration of such training.
    (2) Conditions of authorization--(i) Professional license 
requirement. The individual must be currently licensed to render 
professional health care services in each state in which the individual 
renders services to CHAMPUS beneficiaries. Such license is required when 
a specific state provides, but does not require, license for a specific 
category of individual professional provider. The license must be at 
full clinical practice level to meet this requirement. A temporary 
license at the full clinical practice level is acceptable.
    (ii) Professional certification requirement. When a state does not 
license a specific category of individual professional, certification by 
a Qualified Accreditation Organization, as defined in Sec. 199.2, is 
required. Certification must be at full clinical practice level. A 
temporary certification at the full clinical practice level is 
acceptable.
    (iii) Education, training and experience requirement. The Director, 
OCHAMPUS, or designee, may establish for each category or type of 
provider allowed by this paragraph (c) specific education, training, and 
experience requirements as necessary to promote the delivery of services 
by fully qualified individuals.
    (iv) Physician referral and supervision. When physician referral and 
supervision is a prerequisite for CHAMPUS cost-sharing of the services 
of a provider authorized under this paragraph (c), such referral and 
supervision means that the physicians must actually see the patient to 
evaluate and diagnose the condition to be treated prior to referring the 
beneficiary to another provider and that the referring physician 
provides ongoing oversight of the course of referral related treatment 
throughout the period during which the beneficiary is being treated in 
response to the referral. Written contemporaneous documentation of the 
referring physician's basis for referral and ongoing communication 
between the referring and treating provider regarding the oversight of 
the treatment rendered as a result of the referral must meet all 
requirements for medical records established by this part. Referring 
physician supervision does not require physical location on the premises 
of the treating provider or at the site of treatment.
    (v) Subject to section 1079(a) of title 10, U.S.C., chapter 55, a 
physician or other health care practitioner who is eligible to receive 
reimbursement for services provided under Medicare (as defined in 
section 1086(d)(3)(C) of title 10 U.S.C., chapter 55) shall be 
considered approved to provide medical care authorized under section 
1079 and section 1086 of title 10, U.S.C., chapter 55 unless the 
administering Secretaries have information indicating Medicare, TRICARE, 
or other Federal health care program integrity violations by the 
physician or other health care practitioner. Approval is limited to 
those classes of provider currently considered TRICARE authorized 
providers as outlined in 32 CFR 199.6. Services and supplies rendered by 
those providers who are not currently considered authorized providers 
shall be denied.
    (3) Types of providers. Subject to the standards of participation 
provisions of this part, the following individual professional providers 
of medical care are authorized to provide services to CHAMPUS 
beneficiaries:
    (i) Physicians. (A) Doctors of Medicine (M.D.).
    (B) Doctors of Osteopathy (D.O.).
    (ii) Dentists. Except for covered oral surgery as specified in Sec. 
199.4(e) of this part, all otherwise covered services rendered by 
dentists require preauthorization.

[[Page 187]]

    (A) Doctors of Dental Medicine (D.M.D.).
    (B) Doctors of Dental Surgery (D.D.S.).
    (iii) Other allied health professionals. The services of the 
following individual professional providers of care are coverable on a 
fee-for-service basis provided such services are otherwise authorized in 
this or other sections of this part.
    (A) Clinical psychologist. For purposes of CHAMPUS, a clinical 
psychologist is an individual who is licensed or certified by the state 
for the independent practice of psychology and:
    (1) Possesses a doctoral degree in psychology from a regionally 
accredited university; and
    (2) Has has 2 years of supervised clinical experience in 
psychological health services of which at least 1 year is post-doctoral 
and 1 year (may be the post-doctoral year) is in an organized 
psychological health service training program; or
    (3) As an alternative to paragraphs (c)(3)(iii)(A)(1) and (2) of 
this section is listed in the National Register of Health Service 
Providers in Psychology.
    (B) Doctors of Optometry.
    (C) Doctors of Podiatry or Surgical Chiropody.
    (D) Certified nurse midwives.
    (1) A certified nurse midwife may provide covered care independent 
of physician referral and supervision, provided the nurse midwife is:
    (i) Licensed, when required, by the local licensing agency for the 
jurisdiction in which the care is provided; and
    (ii) Certified by the American College of Nurse Midwives. To receive 
certification, a candidate must be a registered nurse who has completed 
successfully an educational program approved by the American College of 
Nurse Midwives, and passed the American College of Nurse Midwives 
National Certification Examination.
    (2) The services of a registered nurse who is not a certified nurse 
midwife may be authorized only when the patient has been referred for 
care by a licensed physician and a licensed physician provides 
continuing supervision of the course of care. A lay midwife who is 
neither a certified nurse midwife nor a registered nurse is not a 
CHAMPUS-authorized provider, regardless of whether the services rendered 
may otherwise be covered.
    (E) Certified nurse practitioner. Within the scope of applicable 
licensure or certification requirements, a certified nurse practitioner 
may provide covered care independent of physician referral and 
supervision, provided the nurse practitioner is:
    (1) A licensed, registered nurse; and
    (2) Specifically licensed or certified as a nurse practitioner by 
the state in which the care was provided, if the state offers such 
specific licensure or certification; or
    (3) Certified as a nurse practitioner (certified nurse) by a 
professional organization offering certification in the specialty of 
practice, if the state does not offer specific licensure or 
certification for nurse practitioners.
    (F) Certified Clinical Social Worker. A clinical social worker may 
provide covered services independent of physician referral and 
supervision, provided the clinical social worker:
    (1) Is licensed or certified as a clinical social worker by the 
jurisdiction where practicing; or, if the jurisdiction does not provide 
for licensure or certification of clinical social workers, is certified 
by a national professional organization offering certification of 
clinical social workers; and
    (2) Has at least a master's degree in social work from a graduate 
school of social work accredited by the Council on Social Work 
Education; and
    (3) Has had a minimum of 2 years or 3,000 hours of post-master's 
degree supervised clinical social work practice under the supervision of 
a master's level social worker in an appropriate clinical setting, as 
determined by the Director, OCHAMPUS, or a designee.
    Note: Patients' organic medical problems must receive appropriate 
concurrent management by a physician.
    (G) Certified psychiatric nurse specialist. A certified psychiatric 
nurse specialist may provide covered care independent of physician 
referral and supervision. For purposes of CHAMPUS, a certified 
psychiatric nurse specialist is an individual who:
    (1) Is a licensed, registered nurse; and
    (2) Has at least a master's degree in nursing from a regionally 
accredited

[[Page 188]]

institution with a specialization in psychiatric and mental health 
nursing; and
    (3) Has had at least 2 years of post-master's degree practice in the 
field of psychiatric and mental health nursing, including an average of 
8 hours of direct patient contact per week; or
    (4) Is listed in a CHAMPUS-recognized, professionally sanctioned 
listing of clinical specialists in psychiatric and mental health 
nursing.
    (H) Certified physician assistant. A physician assistant may provide 
care under general supervision of a physician (see Sec. 
199.14(g)(1)(iii) of this part for limitations on reimbursement). For 
purposes of CHAMPUS, a physician assistant must meet the applicable 
state requirements governing the qualifications of physician assistants 
and at least one of the following conditions:
    (1) Is currently certified by the National Commission on 
Certification of Physician Assistants to assist primary care physicians, 
or
    (2) Has satisfactorily completed a program for preparing physician 
assistants that:
    (i) Was at least 1 academic year in length;
    (ii) Consisted of supervised clinical practice and at least 4 months 
(in the aggregate) of classroom instruction directed toward preparing 
students to deliver health care; and
    (iii) Was accredited by the American Medical Association's Committee 
on Allied Health Education and Accreditation; or
    (3) Has satisfactorily completed a formal educational program for 
preparing program physician assistants that does not meet the 
requirement of paragraph (c)(3)(iii)(H)(2) of this section and had been 
assisting primary care physicians for a minimum of 12 months during the 
18-month period immediately preceding January 1, 1987.
    (I) Anesthesiologist Assistant. An anesthesiologist assistant may 
provide covered anesthesia services, if the anesthesiologist assistant:
    (1) Works under the direct supervision of an anesthesiologist who 
bills for the services and for each patient;
    (i) The anesthesiologist performs a pre-anesthetic examination and 
evaluation;
    (ii) The anesthesiologist prescribes the anesthesia plan;
    (iii) The anesthesiologist personally participates in the most 
demanding aspects of the anesthesia plan including, if applicable, 
induction and emergence;
    (iv) The anesthesiologist ensures that any procedures in the 
anesthesia plan that he or she does not perform are performed by a 
qualified anesthesiologist assistant;
    (v) The anesthesiologist monitors the course of anesthesia 
administration at frequent intervals;
    (vi) The anesthesiologist remains physically present and available 
for immediate personal diagnosis and treatment of emergencies;
    (vii) The anesthesiologist provides indicated post-anesthesia care; 
and
    (viii) The anesthesiologist performs no other services while he or 
she supervises no more than four anesthesiologist assistants 
concurrently or a lesser number if so limited by the state in which the 
procedure is performed.
    (2) Is in compliance with all applicable requirements of state law, 
including any licensure requirements the state imposes on nonphysician 
anesthetists; and
    (3) Is a graduate of a Master's level anesthesiologist assistant 
educational program that is established under the auspices of an 
accredited medical school and that:
    (i) Is accredited by the Committee on Allied Health Education and 
Accreditation, or its successor organization; and
    (ii) Includes approximately two years of specialized basic science 
and clinical education in anesthesia at a level that builds on a 
premedical undergraduate science background.
    (4) The Director, TMA, or a designee, shall issue TRICARE policies, 
instructions, procedures, guidelines, standards, and criteria as may be 
necessary to implement the intent of this section.
    (J) Certified Registered Nurse Anesthetist (CRNA). A certified 
registered nurse anesthetist may provide covered care independent of 
physician referral and supervision as specified by state licensure. For 
purposes of CHAMPUS, a certified registered nurse anesthetist is an 
individual who:
    (1) Is a licensed, registered nurse; and

[[Page 189]]

    (2) Is certified by the Council on Certification of Nurse 
Anesthetists, or its successor organization.
    (K) Other individual paramedical providers. The services of the 
following individual professional providers of care to be considered for 
benefits on a fee-for-service basis may be provided only if the 
beneficiary is referred by a physician for the treatment of a medically-
diagnosed condition and a physician must also provide continuing and 
ongoing oversight and supervision of the program or episode of treatment 
provided by these individual para-medical providers.
    (1) Licensed registered nurses.
    (2) Licensed registered physical therapists and occupational 
therapists.
    (3) Licensed registered physical therapists.
    (4) Audiologists.
    (5) Speech therapists (speech pathologists).
    (iv) Extramedical individual providers. Extramedical individual 
providers are those who do counseling or nonmedical therapy and whose 
training and therapeutic concepts are outside the medical field. The 
services of extramedical individual professionals are coverable 
following the CHAMPUS determined allowable charge methodology provided 
such services are otherwise authorized in this or other sections of the 
regulation.
    (A) Certified marriage and family therapists. For the purposes of 
CHAMPUS, a certified marriage and family therapist is an individual who 
meets the following requirements:
    (1) Recognized graduate professional education with the minimum of 
an earned master's degree from a regionally accredited educational 
institution in an appropriate behavioral science field, mental health 
discipline; and
    (2) The following experience:
    (i) Either 200 hours of approved supervision in the practice of 
marriage and family counseling, ordinarily to be completed in a 2- to 3-
year period, of which at least 100 hours must be in individual 
supervision. This supervision will occur preferably with more than one 
supervisor and should include a continuous process of supervision with 
at least three cases; and
    (ii) 1,000 hours of clinical experience in the practice of marriage 
and family counseling under approved supervision, involving at least 50 
different cases; or
    (iii) 150 hours of approved supervision in the practice of 
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of 
which at least 50 hours must be individual supervision; plus at least 50 
hours of approved individual supervision in the practice of marriage and 
family counseling, ordinarily to be completed within a period of not 
less than 1 nor more than 2 years; and
    (iv) 750 hours of clinical experience in the practice of 
psychotherapy under approved supervision involving at least 30 cases; 
plus at least 250 hours of clinical practice in marriage and family 
counseling under approved supervision, involving at least 20 cases; and
    (3) Is licensed or certified to practice as a marriage and family 
therapist by the jurisdiction where practicing (see paragraph 
(c)(3)(iv)(D) of this section for more specific information regarding 
licensure); and
    (4) Agrees that a patients' organic medical problems must receive 
appropriate concurrent management by a physician.
    (5) Agrees to accept the CHAMPUS determined allowable charge as 
payment in full, except for applicable deductibles and cost-shares, and 
hold CHAMPUS beneficiaries harmless for noncovered care (i.e., may not 
bill a beneficiary for noncovered care, and may not balance bill a 
beneficiary for amounts above the allowable charge). The certified 
marriage and family therapist must enter into a participation agreement 
with the Office of CHAMPUS within which the certified marriage and 
family therapist agrees to all provisions specified above.
    (6) As of the effective date of termination, the certified marriage 
and family therapist will no longer be recognized as an authorized 
provider under CHAMPUS. Subsequent to termination, the certified 
marriage and family therapist may only be reinstated as an authorized 
CHAMPUS extramedical provider by entering into a new participation 
agreement as a certified marriage and family therapist.

[[Page 190]]

    (B) Pastoral counselors. For the purposes of CHAMPUS, a pastoral 
counselor is an individual who meets the following requirements:
    (1) Recognized graduate professional education with the minimum of 
an earned master's degree from a regionally accredited educational 
institution in an appropriate behavioral science field, mental health 
discipline; and
    (2) The following experience:
    (i) Either 200 hours of approved supervision in the practice of 
pastoral counseling, ordinarily to be completed in a 2- to 3-year 
period, of which at least 100 hours must be in individual supervision. 
This supervision will occur preferably with more than one supervisor and 
should include a continuous process of supervision with at least three 
cases; and
    (ii) 1,000 hours of clinical experience in the practice of pastoral 
counseling under approved supervision, involving at least 50 different 
cases; or
    (iii) 150 hours of approved supervision in the practice of 
psychotherapy, ordinarily to be completed in a 2- to 3-year period, of 
which at least 50 hours must be individual supervision; plus at least 50 
hours of approved individual supervision in the practice of pastoral 
counseling, ordinarily to be completed within a period of not less than 
1 nor more than 2 years; and
    (iv) 750 hours of clinical experience in the practice of 
psychotherapy under approved supervision involving at least 30 cases; 
plus at least 250 hours of clinical practice in pastoral counseling 
under approved supervision, involving at least 20 cases; and
    (3) Is licensed or certified to practice as a pastoral counselor by 
the jurisdiction where practicing (see paragraph (c)(3)(iv)(D) of this 
section for more specific information regarding licensure); and
    (4) The services of a pastoral counselor meeting the above 
requirements are coverable following the CHAMPUS determined allowable 
charge methodology, under the following specified conditions:
    (i) The CHAMPUS beneficiary must be referred for therapy by a 
physician; and
    (ii) A physician is providing ongoing oversight and supervision of 
the therapy being provided; and
    (iii) The pastoral counselor must certify on each claim for 
reimbursement that a written communication has been made or will be made 
to the referring physician of the results of the treatment. Such 
communication will be made at the end of the treatment, or more 
frequently, as required by the referring physician (refer to Sec. 
199.7).
    (5) Because of the similarity of the requirements for licensure, 
certification, experience, and education, a pastoral counselor may elect 
to be authorized under CHAMPUS as a certified marriage and family 
therapist, and as such, be subject to all previously defined criteria 
for the certified marriage and family therapist category, to include 
acceptance of the CHAMPUS determined allowable charge as payment in 
full, except for applicable deductibles and cost-shares (i.e., balance 
billing of a beneficiary above the allowable charge is prohibited; may 
not bill beneficiary for noncovered care). The pastoral counselor must 
also agree to enter into the same participation agreement as a certified 
marriage and family therapist with the Office of CHAMPUS within which 
the pastoral counselor agrees to all provisions including licensure, 
national association membership and conditions upon termination, 
outlined above for certified marriage and family therapist.
    Note: No dual status will be recognized by the Office of CHAMPUS. 
Pastoral counselors must elect to become one of the categories of 
extramedical CHAMPUS provides specified above. Once authorized as either 
a pastoral counselor, or a certified marriage and family therapist, 
claims review and reimbursement will be in accordance with the criteria 
established for the elected provider category.
    (C) Mental health counselor. For the purposes of CHAMPUS, a mental 
health counselor is an individual who meets the following requirements:
    (1) Minimum of a master's degree in mental health counseling or 
allied mental health field from a regionally accredited institution; and
    (2) Two years of post-masters experience which includes 3000 hours 
of clinical work and 100 hours of face-to-face supervision; and

[[Page 191]]

    (3) Is licensed or certified to practice as a mental health 
counselor by the jurisdiction where practicing (see paragraph 
(c)(3)(iv)(D) of this section for more specific information); and
    (4) May only be reimbursed when:
    (i) The CHAMPUS beneficiary is referred for therapy by a physician; 
and
    (ii) A physician is providing ongoing oversight and supervision of 
the therapy being provided; and
    (iii) The mental health counselor certifies on each claim for 
reimbursement that a written communication has been made or will be made 
to the referring physician of the results of the treatment. Such 
communication will be made at the end of the treatment, or more 
frequently, as required by the referring physician (refer to Sec. 
199.7).
    (D) The following additional information applies to each of the 
above categories of extramedical individual providers:
    (1) These providers must also be licensed or certified to practice 
as a certified marriage and family therapist, pastoral counselor or 
mental health counselor by the jurisdiction where practicing. In 
jurisdictions that do not provide for licensure or certification, the 
provider must be certified by or eligible for full clinical membership 
in the appropriate national professional association that sets standards 
for the specific profession.
    (2) Grace period for therapists or counselors in states where 
licensure/certification is optional. CHAMPUS is providing a grace period 
for those therapists or counselors who did not obtain optional 
licensure/certification in their jurisdiction, not realizing it was a 
CHAMPUS requirement for authorization. The exemption by state law for 
pastoral counselors may have misled this group into thinking licensure 
was not required. The same situation may have occurred with the other 
therapist or counselor categories where licensure was either not 
mandated by the state or was provided under a more general category such 
as ``professional counselors.'' This grace period pertains only to the 
licensure/certification requirement, applies only to therapists or 
counselors who are already approved as of October 29, 1990, and only in 
those areas where the licensure/certification is optional. Any therapist 
or counselor who is not licensed/certified in the state in which he/she 
is practicing by August 1, 1991, will be terminated under the provisions 
of Sec. 199.9. This grace period does not change any of the other 
existing requirements which remain in effect. During this grace period, 
membership or proof of eligibility for full clinical membership in a 
recognized professional association is required for those therapists or 
counselors who are not licensed or certified by the state. The following 
organizations are recognized for therapists or counselors at the level 
indicated: Full clinical member of the American Association of Marriage 
and Family Therapy; membership at the fellow or diplomate level of the 
American Association of Pastoral Counselors; and membership in the 
National Academy of Certified Clinical Mental Health Counselors. 
Acceptable proof of eligibility for membership is a letter from the 
appropriate certifying organization. This opportunity for delayed 
certification/licensure is limited to the counselor or therapist 
category only as the language in all of the other provider categories 
has been consistent and unmodified from the time each of the other 
provider categories were added. The grace period does not apply in those 
states where licensure is mandatory.
    (E) Christian Science practitioners and Christian Science nurses. 
CHAMPUS cost-shares the services of Christian Science practitioners and 
nurses. In order to bill as such, practitioners or nurses must be listed 
or be eligible for listing in the Christian Science Journal \1\ at the 
time the service is provided.
---------------------------------------------------------------------------

    \1\ Copies of this journal can be obtained through the Christian 
Science Publishing Company, 1 Norway Street, Boston, MA 02115-3122 or 
the Christian Science Publishing Society, P.O. Box 11369, Des Moines, IA 
50340.
---------------------------------------------------------------------------

    (d) Other providers. Certain medical supplies and services of an 
ancillary or supplemental nature are coverable by CHAMPUS, subject to 
certain controls. This category of provider includes the following:
    (1) Independent laboratory. Laboratory services of independent 
laboratories

[[Page 192]]

may be cost-shared if the laboratory is approved for participation under 
Medicare and certified by the Medicare Bureau, Health Care Financing 
Administration.
    (2) Suppliers of portable x-ray services. Such suppliers must meet 
the conditions of coverage of the Medicare program, set forth in the 
Medicare regulations, or the Medicaid program in that state in which the 
covered service is provided.
    (3) Pharmacies. Pharmacies must meet the applicable requirements of 
state law in the state in which the pharmacy is located.
    (4) Ambulance companies. Such companies must meet the requirements 
of state and local laws in the jurisdiction in which the ambulance firm 
is licensed.
    (5) Medical equipment firms, medical supply firms, and Durable 
Medical Equipment, Prosthetic, Orthotic, Supplies providers/suppliers. 
Any firm, supplier, or provider that is an authorized provider under 
Medicare or is otherwise designated an authorized provider by the 
Director, TRICARE Management Activity.
    (6) Mammography suppliers. Mammography services may be cost-shared 
only if the supplier is certified by Medicare for participation as a 
mammography supplier, or is certified by the American College of 
Radiology as having met its mammography supplier standards.
    (e) Extended Care Health Option Providers.--(1)General. (i) Services 
and items cost-shared through Sec. 199.5 must be rendered by a CHAMPUS-
authorized provider.
    (ii) A Program for Persons with Disabilities (PFPWD) provider with 
TRICARE-authorized status on the effective date for the Extended Care 
Health Option (ECHO) Program shall be deemed to be a TRICARE-authorized 
provider until the expiration of all outstanding PFPWD benefit 
authorizations for services or items being rendered by the provider.
    (2) ECHO provider categories--(i) ECHO inpatient care provider. A 
provider of residential institutional care, which is otherwise an ECHO 
benefit, shall be:
    (A) A not-for-profit entity or a public facility; and
    (B) Located within a state; and
    (C) Be certified as eligible for Medicaid payment in accordance with 
a state plan for medical assistance under Title XIX of the Social 
Security Act (Medicaid) as a Medicaid Nursing Facility, or Intermediate 
Care Facility for the Mentally Retarded, or be a TRICARE-authorized 
institutional provider as defined in paragraph (b) of this section, or 
be approved by a state educational agency as a training institution.
    (ii) ECHO outpatient care provider. A provider of ECHO outpatient, 
ambulatory, or in-home services shall be:
    (A) A TRICARE-authorized provider of services as defined in this 
section; or
    (B) An individual, corporation, foundation, or public entity that 
predominantly renders services of a type uniquely allowable as an ECHO 
benefit and not otherwise allowable as a benefit of Sec. 199.4, that 
meets all applicable licensing or other regulatory requirements of the 
state, county, municipality, or other political jurisdiction in which 
the ECHO service is rendered, or in the absence of such licensing or 
regulatory requirements, as determined by the Director, TRICARE 
Management Activity or designee.
    (iii) ECHO vendor. A provider of an allowable ECHO item, such as 
supplies or equipment, shall be deemed to be a TRICARE-authorized vendor 
for the provision of the specific item, supply or equipment when the 
vendor supplies such information as the Director, TRICARE Management 
Activity or designee determines necessary to adjudicate a specific 
claim.
    (3) ECHO provider exclusion or suspension. A provider of ECHO 
services or items may be excluded or suspended for a pattern of 
discrimination on the basis of disability. Such exclusion or suspension 
shall be accomplished according to the provisions of Sec. 199.9.
    (f) Corporate services providers--(1) General. (i) This corporate 
services provider class is established to accommodate individuals who 
would meet the criteria for status as a CHAMPUS authorized individual 
professional provider as established by paragraph (c) of this section 
but for the fact that they are employed directly or contractually by a 
corporation or foundation that

[[Page 193]]

provides principally professional services which are within the scope of 
the CHAMPUS benefit.
    (ii) Payment for otherwise allowable services may be made to a 
CHAMPUS-authorized corporate services provider subject to the applicable 
requirements, exclusions and limitations of this part.
    (iii) The Director, OCHAMPUS, or designee, may create discrete types 
within any allowable category of provider established by this paragraph 
(f) to improve the efficiency of CHAMPUS management.
    (iv) The Director, OCHAMPUS, or designee, may require, as a 
condition of authorization, that a specific category or type of provider 
established by this paragraph (f):
    (A) Maintain certain accreditation in addition to or in lieu of the 
requirement of paragraph (f)(2)(v) of this section;
    (B) Cooperate fully with a designated utilization and clinical 
quality management organization which has a contract with the Department 
of Defense for the geographic area in which the provider does business;
    (C) Render services for which direct or indirect payment is expected 
to be made by CHAMPUS only after obtaining CHAMPUS written 
authorization; and
    (D) Maintain Medicare approval for payment when the Director, 
OCHAMPUS, or designee, determines that a category, or type, of provider 
established by this paragraph (f) is substantially comparable to a 
provider or supplier for which Medicare has regulatory conditions of 
participation or conditions of coverage.
    (v) Otherwise allowable services may be rendered at the authorized 
corporate services provider's place of business, or in the beneficiary's 
home under such circumstances as the Director, OCHAMPUS, or designee, 
determines to be necessary for the efficient delivery of such in-home 
services.
    (vi) The Director, OCHAMPUS, or designee, may limit the term of a 
participation agreement for any category or type of provider established 
by this paragraph (f).
    (vii) Corporate services providers shall be assigned to only one of 
the following allowable categories based upon the predominate type of 
procedure rendered by the organization;
    (A) Medical treatment procedures;
    (B) Surgical treatment procedures;
    (C) Maternity management procedures;
    (D) Rehabilitation and/or habilitation procedures; or
    (E) Diagnostic technical procedures.
    (viii) The Director, OCHAMPUS, or designee, shall determine the 
appropriate procedural category of a qualified organization and may 
change the category based upon the provider's CHAMPUS claim 
characteristics. The category determination of the Director, OCHAMPUS, 
designee, is conclusive and may not be appealed.
    (2) Conditions of authorization. An applicant must meet the 
following conditions to be eligible for authorization as a CHAMPUS 
corporate services provider:
    (i) Be a corporation or a foundation, but not a professional 
corporation or professional association; and
    (ii) Be institution-affiliated or freestanding as defined in Sec. 
199.2; and
    (iii) Provide:
    (A) Services and related supplies of a type rendered by CHAMPUS 
individual professional providers or diagnostic technical services and 
related supplies of a type which requires direct patient contact and a 
technologist who is licensed by the state in which the procedure is 
rendered or who is certified by a Qualified Accreditation Organization 
as defined in Sec. 199.2; and
    (B) A level of care which does not necessitate that the beneficiary 
be provided with on-site sleeping accommodations and food in conjunction 
with the delivery of services; and
    (iv) Complies with all applicable organizational and individual 
licensing or certification requirements that are extant in the state, 
county, municipality, or other political jurisdiction in which the 
provider renders services; and
    (v) Be approved for Medicare payment when determined to be 
substantially comparable under the provisions of paragraph (f)(1)(iv)(D) 
of this section or, when Medicare approved status is not required, be 
accredited by a qualified accreditation organization, as defined in 
Sec. 199.2; and

[[Page 194]]

    (vi) Has entered into a participation agreement approved by the 
Director, OCHAMPUS, or designee, which at least complies with the 
minimum participation agreement requirements of this section.
    (3) Transfer of participation agreement. In order to provide 
continuity of care for beneficiaries when there is a change of provider 
ownership, the provider agreement is automatically assigned to the new 
owner, subject to all the terms and conditions under which the original 
agreement was made.
    (i) The merger of the provider corporation or foundation into 
another corporation or foundation, or the consolidation of two or more 
corporations or foundations resulting in the creation of a new 
corporation or foundation, constitutes a change of ownership.
    (ii) Transfer of corporate stock or the merger of another 
corporation or foundation into the provider corporation or foundation 
does not constitute change of ownership.
    (iii) The surviving corporation or foundation shall notify the 
Director, OCHAMPUS, or designee, in writing of the change of ownership 
promptly after the effective date of the transfer or change in 
ownership.
    (4) Pricing and payment methodology: The pricing and payment of 
procedures rendered by a provider authorized under this paragraph (f) 
shall be limited to those methods for pricing and payment allowed by 
this part which the Director, OCHAMPUS, or designee, determines 
contribute to the efficient management of CHAMPUS.
    (5) Termination of participation agreement. A provider may terminate 
a participation agreement upon 45 days written notice to the Director, 
OCHAMPUS, or designee, and to the public.

[51 FR 24008, July 1, 1986]

    Editorial Note: For Federal Register citations affecting Sec. 
199.6, see the List of Sections Affected, which appears in the Finding 
Aids section of the printed volume and on GPO Access.



Sec. 199.7  Claims submission, review, and payment.

    (a) General. The Director, OCHAMPUS, or a designee, is responsible 
for ensuring that benefits under CHAMPUS are paid only to the extent 
described in this part. Before benefits can be paid, an appropriate 
claim must be submitted that includes sufficient information as to 
beneficiary identification, the medical services and supplies provided, 
and double coverage information, to permit proper, accurate, and timely 
adjudication of the claim by the CHAMPUS contractor or OCHAMPUS. 
Providers must be able to document that the care or service shown on the 
claim was rendered. This section sets forth minimum medical record 
requirements for verification of services. Subject to such definitions, 
conditions, limitations, exclusions, and requirements as may be set 
forth in this part, the following are the CHAMPUS claim filing 
requirements:
    (1) CHAMPUS identification card required. A patient shall present 
his or her applicable CHAMPUS identification card (that is, Uniformed 
Services identification card) to the authorized provider of care that 
identifies the patient as an eligible CHAMPUS beneficiary (refer to 
Sec. 199.3 of this part).
    (2) Claim required. No benefit may be extended under the Basic 
Program or Extended Care Health Option (ECHO) without submission of an 
appropriate, complete and properly executed claim form.
    (3) Responsibility for perfecting claim. It is the responsibility of 
the CHAMPUS beneficiary or sponsor or the authorized provider acting on 
behalf of the CHAMPUS beneficiary to perfect a claim for submission to 
the appropriate CHAMPUS fiscal intermediary. Neither a CHAMPUS fiscal 
intermediary nor OCHAMPUS is authorized to prepare a claim on behalf of 
a CHAMPUS beneficiary.
    (4) Obtaining appropriate claim form. CHAMPUS provides specific 
CHAMPUS forms appropriate for making a claim for benefits for various 
types of medical services and supplies (such as hospital, physician, or 
prescription drugs). Claim forms may be obtained from the appropriate 
CHAMPUS fiscal intermediary who processes claims for the beneficiary's 
state of residence, from

[[Page 195]]

the Director, OCHAMPUS, or a designee, or from CHAMPUS health benefits 
advisors (HBAs) located at all Uniformed Services medical facilities.
    (5) Prepayment not required. A CHAMPUS beneficiary or sponsor is not 
required to pay for the medical services or supplies before submitting a 
claim for benefits.
    (6) Deductible certificate. If the fiscal year outpatient 
deductible, as defined in Sec. 199.4(f)(2) has been met by a 
beneficiary or a family through the submission of a claim or claims to a 
CHAMPUS fiscal intermediary in a geographic location different from the 
location where a current claim is being submitted, the beneficiary or 
sponsor must obtain a deductible certificate from the CHAMPUS fiscal 
intermediary where the applicable individual or family fiscal year 
deductible was met. Such deductible certificate must be attached to the 
current claim being submitted for benefits. Failure to obtain a 
deductible certificate under such circumstances will result in a second 
individual or family fiscal year deductible being applied. However, this 
second deductible may be reimbursed once appropriate documentation, as 
described in this paragraph is supplied to the CHAMPUS fiscal 
intermediary applying the second deductible (refer to Sec. 199.4 
(f)(2)(i)(F)).
    (7) Nonavailability Statement (DD Form 1251). In some geographic 
locations or under certain circumstances, it is necessary for a CHAMPUS 
beneficiary to determine whether the required medical care can be 
provided through a Uniformed Services facility. If the required medical 
care cannot be provided by the Uniformed Services facility, a 
Nonavailability Statement will be issued. When required (except for 
emergencies), this Nonavailability Statement must be issued before 
medical care is obtained from civilian sources. Failure to secure such a 
statement will waive the beneficiary's rights to benefits under CHAMPUS, 
subject to appeal to the appropriate hospital commander (or higher 
medical authority).
    (i) Rules applicable to issuance of Nonavailability Statement. 
Appropriate policy guidance may be issued as necessary to prescribe the 
conditions for issuance and use of a Nonavailability Statement.
    (ii) Beneficiary responsibility. The beneficiary shall ascertain 
whether or not he or she resides in a geographic area that requires 
obtaining a Nonavailability Statement. Information concerning current 
rules may be obtained from the CHAMPUS fiscal intermediary concerned, a 
CHAMPUS HBA or the Director, OCHAMPUS, or a designee.
    (iii) Rules in effect at time civilian care is provided apply. The 
applicable rules regarding Nonavailability Statements in effect at the 
time the civilian care is rendered apply in determining whether a 
Nonavailability Statement is required.
    (iv) Nonavailability Statement must be filed with applicable claim. 
When a claim is submitted for CHAMPUS benefits that includes services 
for which a Nonavailability Statement is required, such statement must 
be submitted along with the claim form.
    (b) Information required to adjudicate a CHAMPUS claim. Claims 
received that are not completed fully and that do not provide the 
following minimum information may be returned. If enough space is not 
available on the appropriate claim form, the required information must 
be attached separately and include the patient's name and address, be 
dated, and signed.
    (1) Patient's identification information. The following patient 
identification information must be completed on every CHAMPUS claim form 
submitted for benefits before a claim will be adjudicated and processed:
    (i) Patient's full name.
    (ii) Patient's residence address.
    (iii) Patient's date of birth.
    (iv) Patient's relationship to sponsor.
    Note: If name of patient is different from sponsor, explain (for 
example, stepchild or illegitimate child).
    (v) Patient's identification number (from DD Form 1173).
    (vi) Patient's identification card effective date and expiration 
date (from DD Form 1173).
    (vii) Sponsor's full name.
    (viii) Sponsor's service or social security number.
    (ix) Sponsor's grade.

[[Page 196]]

    (x) Sponsor's organization and duty station. Home port for ships; 
home address for retiree.
    (xi) Sponsor's branch of service or deceased or retiree's former 
branch of service.
    (xii) Sponsor's current status. Active duty, retired, or deceased.
    (2) Patient treatment information. The following patient treatment 
information routinely is required relative to the medical services and 
supplies for which a claim for benefits is being made before a claim 
will be adjudicated and processed:
    (i) Diagnosis. All applicable diagnoses are required; standard 
nomenclature is acceptable. In the absence of a diagnosis, a narrative 
description of the definitive set of symptoms for which the medical care 
was rendered must be provided.
    (ii) Source of care. Full name of source of care (such as hospital 
or physician) providing the specific medical services being claimed.
    (iii) Full address of source of care. This address must be where the 
care actually was provided, not a billing address.
    (iv) Attending physician. Name of attending physician (or other 
authorized individual professional provider).
    (v) Referring physician. Name and address of ordering, prescribing, 
or referring physician.
    (vi) Status of patient. Status of patient at the time the medical 
services and supplies were rendered (that is, inpatient or outpatient).
    (vii) Dates of service. Specific and inclusive dates of service.
    (viii) Inpatient stay. Source and dates of related inpatient stay 
(if applicable).
    (ix) Physicians or other authorized individual professional 
providers. The claims must give the name of the individual actually 
rendering the care, along with the individual's professional status 
(e.g., M.D., Ph.D., R.N., etc.) and provider number, if the individual 
signing the claim is not the provider who actually rendered the service. 
The following information must also be included:
    (A) Date each service was rendered.
    (B) Procedure code or narrative description of each procedure or 
service for each date of service.
    (C) Individual charge for each item of service or each supply for 
each date.
    (D) Detailed description of any unusual complicating circumstances 
related to the medical care provided that the physician or other 
individual professional provider may choose to submit separately.
    (x) Hospitals or other authorized institutional providers. For care 
provided by hospitals (or other authorized institutional providers), the 
following information also must be provided before a claim will be 
adjudicated and processed:
    (A) An itemized billing showing each item of service or supply 
provided for each day covered by the claim.
    Note: The Director, OCHAMPUS, or a designee, may approve, in 
writing, an alternative billing procedure for RTCs or other special 
institutions, in which case the itemized billing requirement may be 
waived. The particular facility will be aware of such approved alternate 
billing procedure.
    (B) Any absences from a hospital or other authorized institution 
during a period for which inpatient benefits are being claimed must be 
identified specifically as to date or dates and provide details on the 
purpose of the absence. Failure to provide such information will result 
in denial of benefits and, in an ongoing case, termination of benefits 
for the inpatient stay at least back to the date of the absence.
    (C) For hospitals subject to the CHAMPUS DRG-based payment system 
(see paragraph (a)(1)(ii)(D) of Sec. 199.14), the following information 
is also required:
    (1) The principal diagnosis (the diagnosis established, after study, 
to be chiefly responsible for causing the patient's admission to the 
hospital).
    (2) All secondary diagnoses.
    (3) All significant procedures performed.
    (4) The discharge status of the beneficiary.
    (5) The hospital's Medicare provider number.
    (6) The source of the admission.
    (D) Claims submitted by hospitals (or other authorized institutional 
providers) must include the name of the individual actually rendering 
the care, along with the individual's professional status (e.g., M.D., 
Ph.D., R.N., etc.).

[[Page 197]]

    (xi) Prescription drugs and medicines (and insulin). For 
prescription drugs and medicines (and insulin, whether or not a 
prescription is required) receipted bills must be attached and the 
following additional information provided:
    (A) Name of drug.
    Note: When the physician or pharmacist so requests, the name of the 
drugs may be submitted to the CHAMPUS fiscal intermediary directly by 
the physician or pharmacist.
    (B) Strength of drug.
    (C) Name and address of pharmacy where drug was purchased.
    (D) Prescription number of drug being claimed.
    (xii) Other authorized providers. For items from other authorized 
providers (such as medical supplies), an explanation as to the medical 
need must be attached to the appropriate claim form. For purchases of 
durable equipment under the ECHO it is necessary also to attach a copy 
of the authorization.
    (xiii) Nonparticipating providers. When the beneficiary or sponsor 
submits the claim to the CHAMPUS fiscal intermediary (that is, the 
provider elects not to participate), an itemized bill from the provider 
to the beneficiary or sponsor must be attached to the CHAMPUS claim 
form.
    (3) Medical records/medical documentation. Medical records are of 
vital importance in the care and treatment of the patient. Medical 
records serve as a basis for planning of patient care and for the 
ongoing evaluation of the patient's treatment and progress. Accurate and 
timely completion of orders, notes, etc., enable different members of a 
health care team and subsequent health care providers to have access to 
relevant data concerning the patient. Appropriate medical records must 
be maintained in order to accommodate utilization review and to 
substantiate that billed services were actually rendered.
    (i) All care rendered and billed must be appropriately documented in 
writing. Failure to document the care billed will result in the claim or 
specific services on the claim being denied CHAMPUS cost-sharing.
    (ii) A pattern of failure to adequately document medical care will 
result in episodes of care being denied CHAMPUS cost-sharing.
    (iii) Cursory notes of a generalized nature that do not identify the 
specific treatment and the patient's response to the treatment are not 
acceptable.
    (iv) The documentation of medical records must be legible and 
prepared as soon as possible after the care is rendered. Entries should 
be made when the treatment described is given or the observations to be 
documented are made. The following are documentation requirements and 
specific time frames for entry into the medical records:
    (A) General requirements for acute medical/surgical services:
    (1) Admission evaluation report within 24 hours of admission.
    (2) Completed history and physical examination report within 72 
hours of admission.
    (3) Registered nursing notes at the end of each shift.
    (4) Daily physician notes.
    (B) Requirements specific to mental health services:
    (1) Psychiatric admission evaluation report within 24 hours of 
admission.
    (2) History and physical examination within 24 hours of admission; 
complete report documented within 72 hours for acute and residential 
programs and within 3 working days for partial programs.
    (3) Individual and family therapy notes within 24 hours of procedure 
for acute, detoxification and Residential Treatment Center (RTC) 
programs and within 48 hours for partial programs.
    (4) Preliminary treatment plan within 24 hours of admission.
    (5) Master treatment plan within 5 calendar days of admission for 
acute care, 10 days for RTC care, 5 days for full-day partial programs 
and within 7 days for half-day partial programs.
    (6) Family assessment report within 72 hours of admission for acute 
care and 7 days for RTC and partial programs.
    (7) Nursing assessment report within 24 hours of admission.
    (8) Nursing notes at the end of each shift for acute and 
detoxification programs; every ten visits for partial hospitalization; 
and at least once a week for RTCs.

[[Page 198]]

    (9) Daily physician notes for intensive treatment, detoxification, 
and rapid stabilization programs; twice per week for acute programs; and 
once per week for RTC and partial programs.
    (10) Group therapy notes once per week.
    (11) Ancillary service notes once per week.
    Note: A pattern of failure to meet the above criteria may result in 
provider sanctions prescribed under Sec. 199.9.
    (4) Double coverage information. When the CHAMPUS beneficiary is 
eligible for medical benefits coverage through another plan, insurance, 
or program, either private or Government, the following information must 
be provided:
    (i) Name of other coverage. Full name and address of double coverage 
plan, insurance, or program (such as Blue Cross, Medicare, commercial 
insurance, and state program).
    (ii) Source of double coverage. Source of double coverage (such as 
employment, including retirement, private purchase, membership in a 
group, and law).
    (iii) Employer information. If source of double coverage is 
employment, give name and address of employer.
    (iv) Identification number. Identification number or group number of 
other coverage.
    (5) Right to additional information. (i) As a condition precedent to 
the cost-sharing of benefits under this part or pursuant to a review or 
audit, whether the review or audit is prospective, concurrent, or 
retroactive, OCHAMPUS or CHAMPUS contractors may request, and shall be 
entitled to receive, information from a physician or hospital or other 
person, institution, or organization (including a local, state, or 
Federal Government agency) providing services or supplies to the 
beneficiary for whom claims or requests for approval for benefits are 
submitted. Such information and records may relate to the attendance, 
testing, monitoring, examination, diagnosis, treatment, or services and 
supplies furnished to a beneficiary and, as such, shall be necessary for 
the accurate and efficient administration of CHAMPUS benefits. This may 
include requests for copies of all medical records or documentation 
related to the episode of care. In addition, before a determination on a 
request for preauthorization or claim of benefits is made, a 
beneficiary, or sponsor, shall provide additional information relevant 
to the requested determination, when necessary. The recipient of such 
information shall hold such records confidential except when:
    (A) Disclosure of such information is authorized specifically by the 
beneficiary;
    (B) Disclosure is necessary to permit authorized governmental 
officials to investigate and prosecute criminal actions; or
    (C) Disclosure is authorized or required specifically under the 
terms of DoD Directive 5400.7 and 5400.11, the Freedom of Information 
Act, and the Privacy Act (refer to paragraph (m) of Sec. 199.1 of this 
part).
    (ii) For the purposes of determining the applicability of and 
implementing the provisions of Sec. Sec. 199.8 and 199.9, or any 
provision of similar purpose of any other medical benefits coverage or 
entitlement, OCHAMPUS or CHAMPUS fiscal intermediaries, without consent 
or notice to any beneficiary or sponsor, may release to or obtain from 
any insurance company or other organization, governmental agency, 
provider, or person, any information with respect to any beneficiary 
when such release constitutes a routine use duly published in the 
Federal Register in accordance with the Privacy Act.
    (iii) Before a beneficiary's claim of benefits is adjudicated, the 
beneficiary or the provider(s) must furnish to CHAMPUS that information 
which is necessary to make the benefit determination. Failure to provide 
the requested information will result in denial of the claim. A 
beneficiary, by submitting a CHAMPUS claim(s) (either a participating or 
nonparticipating claim), is deemed to have given consent to the release 
of any and all medical records or documentation pertaining to the claims 
and the episode of care.
    (c) Signature on CHAMPUS Claim Form--(1) Beneficiary signature. 
CHAMPUS claim forms must be signed by the beneficiary except under the 
conditions identified in paragraph (c)(1)(v) of this section. The parent 
or

[[Page 199]]

guardian may sign for any beneficiary under 18 years.
    (i) Certification of identity. This signature certifies that the 
patient identification information provided is correct.
    (ii) Certification of medical care provided. This signature 
certifies that the specific medical care for which benefits are being 
claimed actually were rendered to the beneficiary on the dates 
indicated.
    (iii) Authorization to obtain or release information. Before 
requesting additional information necessary to process a claim or 
releasing medical information, the signature of the beneficiary who is 
18 years old or older must be recorded on or obtained on the CHAMPUS 
claim form or on a separate release form. The signature of the 
beneficiary, parent, or guardian will be requested when the beneficiary 
is under 18 years.
    Note: If the care was rendered to a minor and a custodial parent or 
legal guardian requests information prior to the minor turning 18 years 
of age, medical records may still be released pursuant to the signature 
of the parent or guardian, and claims information may still be released 
to the parent or guardian in response to the request, even though the 
beneficiary has turned 18 between the time of the request and the 
response. However, any follow-up request or subsequent request from the 
parent or guardian, after the beneficiary turns 18 years of age, will 
necessitate the authorization of the beneficiary (or the beneficiary's 
legal guardian as appointed by a cognizant court), before records and 
information can be released to the parent or guardian.
    (iv) Certification of accuracy and authorization to release double 
coverage information. This signature certifies to the accuracy of the 
double coverage information and authorizes the release of any 
information related to double coverage. (Refer to Sec. 199.8 of this 
part).
    (v) Exceptions to beneficiary signature requirement. (A) Except as 
required by paragraph (c)(1)(iii) of this section, the signature of a 
spouse, parent, or guardian will be accepted on a claim submitted for a 
beneficiary who is 18 years old or older.
    (B) When the institutional provider obtains the signature of the 
beneficiary (or the signature of the parent or guardian when the 
beneficiary is under 18 years) on a CHAMPUS claim form at admission, the 
following participating claims may be submitted without the 
beneficiary's signature.
    (1) Claims for laboratory and diagnostic tests and test 
interpretations from radiologists, pathologists, neurologists, and 
cardiologists.
    (2) Claims from anesthesiologists.
    (C) Claims filed by providers using CHAMPUS-approved signature-on-
file and claims submission procedures.
    (2) Provider's signature. A participating provider (see paragraph 
(a)(8) of Sec. 199.6) is required to sign the CHAMPUS claim form.
    (i) Certification. A participating provider's signature on a CHAMPUS 
claim form:
    (A) Certifies that the specific medical care listed on the claim 
form was, in fact, rendered to the specific beneficiary for which 
benefits are being claimed, on the specific date or dates indicated, at 
the level indicated and by the provider signing the claim unless the 
claim otherwise indicates another individual provided the care. For 
example, if the claim is signed by a psychiatrist and the care billed 
was rendered by a psychologist or licensed social worker, the claim must 
indicate both the name and profession of the individual who rendered the 
care.
    (B) Certifies that the provider has agreed to participate (providing 
this agreement has been indicated on the claim form) and that the 
CHAMPUS-determined allowable charge or cost will constitute the full 
charge or cost for the medical care listed on the specific claim form; 
and further agrees to accept the amount paid by CHAMPUS or the CHAMPUS 
payment combined with the cost-shared amount paid by, or on behalf of 
the beneficiary, as full payment for the covered medical services or 
supplies.
    (1) Thus, neither CHAMPUS nor the sponsor is responsible for any 
additional charges, whether or not the CHAMPUS-determined charge or cost 
is less than the billed amount.
    (2) Any provider who signs and submits a CHAMPUS claim form and then 
violates this agreement by billing the beneficiary or sponsor for any 
difference between the CHAMPUS-determined charge or cost and the amount

[[Page 200]]

billed is acting in bad faith and is subject to penalties including 
withdrawal of CHAMPUS approval as a CHAMPUS provider by administrative 
action of the Director, OCHAMPUS, or a designee, and possible legal 
action on the part of CHAMPUS, either directly or as a part of a 
beneficiary action, to recover monies improperly obtained from CHAMPUS 
beneficiaries or sponsors (refer to Sec. 199.6 of this part.)
    (ii) Physician or other authorized individual professional provider. 
A physician or other authorized individual professional provider is 
liable for any signature submitted on his or her behalf. Further, a 
facsimile signature is not acceptable unless such facsimile signature is 
on file with, and has been authorized specifically by, the CHAMPUS 
fiscal intermediary serving the state where the physician or other 
authorized individual professional provider practices.
    (iii) Hospital or other authorized institutional provider. The 
provider signature on a claim form for institutional services must be 
that of an authorized representative of the hospital or other authorized 
institutional provider, whose signature is on file with and approved by 
the appropriate CHAMPUS fiscal intermediary.
    (d) Claims filing deadline. For all services provided on or after 
January 1, 1993, to be considered for benefits, all claims submitted for 
benefits must, except as provided in paragraph (d)(2) of this section, 
be filed with the appropriate CHAMPUS contractor no later than one year 
after the services are provided. Unless the requirement is waived, 
failure to file a claim within this deadline waives all rights to 
benefits for such services or supplies.
    (1) Claims returned for additional information. When a claim is 
submitted initially within the claim filing time limit, but is returned 
in whole or in part for additional information to be considered for 
benefits, the returned claim, along with the requested information, must 
be resubmitted and received by the appropriate CHAMPUS contractor no 
later than the later of:
    (i) One year after the services are provided; or
    (ii) 90 days from the date the claim was returned to the provider or 
beneficiary.
    (2) Exception to claims filing deadline. The Director, OCHAMPUS, or 
a designee, may grant exceptions to the claims filing deadline 
requirements.
    (i) Types of exception. (A) Retroactive eligibility. Retroactive 
CHAMPUS eligibility determinations.
    (B) Administrative error. Administrative error (that is, 
misrepresentation, mistake, or other accountable action) of an officer 
or employee of OCHAMPUS (including OCHAMPUSEUR) or a CHAMPUS fiscal 
intermediary, performing functions under CHAMPUS and acting within the 
scope of that official's authority.
    (C) Mental incompetency. Mental incompetency of the beneficiary or 
guardian or sponsor, in the case of a minor child (which includes 
inability to communicate, even if it is the result of a physical 
disability).
    (D) Delays by other health insurance. When not attributable to the 
beneficiary, delays in adjudication by other health insurance companies 
when double coverage coordination is required before the CHAMPUS benefit 
determination.
    (E) Other waiver authority. The Director, OCHAMPUS may waive the 
claims filing deadline in other circumstances in which the Director 
determines that the waiver is necessary in order to ensure adequate 
access for CHAMPUS beneficiaries to health care services.
    (ii) Request for exception to claims filing deadline. Beneficiaries 
who wish to request an exception to the claims filing deadline may 
submit such a request to the CHAMPUS fiscal intermediary having 
jurisdiction over the location in which the service was rendered, or as 
otherwise designated by the Director, OCHAMPUS.
    (A) Such requests for an exception must include a complete 
explanation of the circumstances of the late filing, together with all 
available documentation supporting the request, and the specific claim 
denied for late filing.
    (B) Each request for an exception to the claims filing deadline is 
reviewed individually and considered on its own merits.

[[Page 201]]

    (e) Other claims filing requirements. Notwithstanding the claims 
filing deadline described in paragraph (d) of this section, to lessen 
any potential adverse impact on a CHAMPUS beneficiary or sponsor that 
could result from a retroactive denial, the following additional claims 
filing procedures are recommended or required.
    (1) Continuing care. Except for claims subject to the CHAMPUS DRG-
based payment system, whenever medical services and supplies are being 
rendered on a continuing basis, an appropriate claim or claims should be 
submitted every 30 days (monthly) whether submitted directly by the 
beneficiary or sponsor or by the provider on behalf of the beneficiary. 
Such claims may be submitted more frequently if the beneficiary or 
provider so elects. The Director, OCHAMPUS, or a designee, also may 
require more frequent claims submission based on dollars. Examples of 
care that may be rendered on a continuing basis are outpatient physical 
therapy, private duty (special) nursing, or inpatient stays. For claims 
subject to the CHAMPUS DRG-based payment system, claims may be submitted 
only after the beneficiary has been discharged or transferred from the 
hospital.
    (2) Inpatient mental health services. Under most circumstances, the 
60-day inpatient mental health limit applies to the first 60 days of 
care paid in a calendar year. The patient will be notified when the 
first 30 days of inpatient mental health benefits have been paid. The 
beneficiary is responsible for assuring that all claims for care are 
submitted sequentially and on a regular basis. Once payment has been 
made for care determined to be medically appropriate and a program 
benefit, the decision will not be reopened solely on the basis that 
previous inpatient mental health care had been rendered but not yet 
billed during the same calendar year by a different provider.
    (3) Claims involving the services of marriage and family counselors, 
pastoral counselors, and mental health counselors. CHAMPUS requires that 
marriage and family counselors, pastoral counselors, and mental health 
counselors make a written report to the referring physician concerning 
the CHAMPUS beneficiary's progress. Therefore, each claim for 
reimbursement for services of marriage and family counselors, pastoral 
counselors, and mental health counselors must include certification to 
the effect that a written communication has been made or will be made to 
the referring physician at the end of treatment, or more frequently, as 
required by the referring physician.
    (f) Preauthorization. When specifically required in other sections 
of this part, preauthorization requires the following:
    (1) Preauthorization must be granted before benefits can be 
extended. In those situations requiring preauthorization, the request 
for such preauthorization shall be submitted and approved before 
benefits may be extended, except as provided in Sec. 199.4(a)(11). If a 
claim for services or supplies is submitted without the required 
preauthorization, no benefits shall be paid, unless the Director, 
OCHAMPUS, or a designee, has granted an exception to the requirement for 
preauthorization.
    (i) Specifically preauthorized services. An approved 
preauthorization specifies the exact services or supplies for which 
authorization is being given. In a preauthorization situation, benefits 
cannot be extended for services or supplies provided beyond the specific 
authorization.
    (ii) Time limit on preauthorization. Approved preauthorizations are 
valid for specific periods of time, appropriate for the circumstances 
presented and specified at the time the preauthorization is approved. In 
general, preauthorizations are valid for 30 days. If the preauthorized 
service or supplies are not obtained or commenced within the specified 
time limit, a new preauthorization is required before benefits may be 
extended. For organ and stem cell transplants, the preauthorization 
shall remain in effect as long as the beneficiary continues to meet the 
specific transplant criteria set forth in the TRICARE/CHAMPUS Policy 
Manual, or until the approved transplant occurs.
    (2) Treatment plan. Each preauthorization request shall be 
accompanied by a proposed medical treatment plan (for inpatient stays 
under the Basic Program) which shall

[[Page 202]]

include generally a diagnosis; a detailed summary of complete history 
and physical; a detailed statement of the problem; the proposed 
treatment modality, including anticipated length of time the proposed 
modality will be required; any available test results; consultant's 
reports; and the prognosis. When the preauthorization request involves 
transfer from a hospital to another inpatient facility, medical records 
related to the inpatient stay also must be provided.
    (3) Claims for services and supplies that have been preauthorized. 
Whenever a claim is submitted for benefits under CHAMPUS involving 
preauthorized services and supplies, the date of the approved 
preauthorization must be indicated on the claim form and a copy of the 
written preauthorization must be attached to the appropriate CHAMPUS 
claim.
    (4) Advance payment prohibited. No CHAMPUS payment shall be made for 
otherwise authorized services or items not yet rendered or delivered to 
the beneficiary.
    (g) Claims review. It is the responsibility of the CHAMPUS fiscal 
intermediary (or OCHAMPUS, including OCHAMPUSEUR) to review each CHAMPUS 
claim submitted for benefit consideration to ensure compliance with all 
applicable definitions, conditions, limitations, or exclusions specified 
or enumerated in this part. It is also required that before any CHAMPUS 
benefits may be extended, claims for medical services and supplies will 
be subject to utilization review and quality assurance standards, norms, 
and criteria issued by the Director, OCHAMPUS, or a designee (see 
paragraph (a)(1)(v) of Sec. 199.14 for review standards for claims 
subject to the CHAMPUS DRG-based payment system).
    (h) Benefit payments. CHAMPUS benefit payments are made either 
directly to the beneficiary or sponsor or to the provider, depending on 
the manner in which the CHAMPUS claim is submitted.
    (1) Benefit payments made to beneficiary or sponsor. When the 
CHAMPUS beneficiary or sponsor signs and submits a specific claim form 
directly to the appropriate CHAMPUS fiscal intermediary (or OCHAMPUS, 
including OCHAMPUSEUR), any CHAMPUS benefit payments due as a result of 
that specific claim submission will be made in the name of, and mailed 
to, the beneficiary or sponsor. In such circumstances, the beneficiary 
or sponsor is responsible to the provider for any amounts billed.
    (2) Benefit payments made to participating provider. When the 
authorized provider elects to participate by signing a CHAMPUS claim 
form, indicating participation in the appropriate space on the claim 
form, and submitting a specific claim on behalf of the beneficiary to 
the appropriate CHAMPUS fiscal intermediary, any CHAMPUS benefit 
payments due as a result of that claim submission will be made in the 
name of and mailed to the participating provider. Thus, by signing the 
claim form, the authorized provider agrees to abide by the CHAMPUS-
determined allowable charge or cost, whether or not lower than the 
amount billed. Therefore, the beneficiary or sponsor is responsible only 
for any required deductible amount and any cost-sharing portion of the 
CHAMPUS-determined allowable charge or cost as may be required under the 
terms and conditions set forth in Sec. Sec. 199.4 and 199.5 of this 
part.
    (3) CEOB. When a CHAMPUS claim is adjudicated, a CEOB is sent to the 
beneficiary or sponsor. A copy of the CEOB also is sent to the provider 
if the claim was submitted on a participating basis. The CEOB form 
provides, at a minimum, the following information:
    (i) Name and address of beneficiary.
    (ii) Name and address of provider.
    (iii) Services or supplies covered by claim for which CEOB applies.
    (iv) Dates services or supplies provided.
    (v) Amount billed; CHAMPUS-determined allowable charge or cost; and 
amount of CHAMPUS payment.
    (vi) To whom payment, if any, was made.
    (vii) Reasons for any denial.
    (viii) Recourse available to beneficiary for review of claim 
decision (refer to Sec. 199.10 of this part).
    Note: The Director, OCHAMPUS, or a designee, may authorize a CHAMPUS 
fiscal intermediary to waive a CEOB to protect the privacy of a CHAMPUS 
beneficiary.

[[Page 203]]

    (4) Benefit under $1. If the CHAMPUS benefit is determined to be 
under $1, payment is waived.
    (i) Extension of the Active Duty Dependents Dental Plan to areas 
outside the United States. The Assistant Secretary of Defense (Health 
Affairs) (ASD(HA) may, under the authority of 10 U.S.C. 1076a(h), extend 
the Active Duty Dependents Dental Plan to areas other than those areas 
specified in paragraph (a)(2)(i) of this section for the eligible 
beneficiaries of members of the Uniformed Services. In extending the 
program outside the Continental United States, the ASD(HA), or designee, 
is authorized to establish program elements, methods of administration 
and payment rates and procedures to providers that are different from 
those in effect under this section in the Continental United States to 
the extent the ASD(HA), or designee, determines necessary for the 
effective and efficient operation of the plan outside the Continental 
United States. This includes provisions for preauthorization of care if 
the needed services are not available in a Uniformed Service overseas 
dental treatment facility and payment by the Department of certain cost-
shares and other portions of a provider's billed charges. Other 
differences may occur based on limitations in the availability and 
capabilities of the Uniformed Services overseas dental treatment 
facility and a particular nation's civilian sector providers in certain 
areas. Otherwise, rules pertaining to services covered under the plan 
and quality of care standards for providers shall be comparable to those 
in effect under this section in the Continental United States and 
available military guidelines. In addition, all provisions of 10 U.S.C. 
1076a shall remain in effect.
    (j) General assignment of benefits not recognized. CHAMPUS does not 
recognize any general assignment of CHAMPUS benefits to another person. 
All CHAMPUS benefits are payable as described in this and other Sections 
of this part.

[51 FR 24008, July 1, 1986, as amended at 52 FR 33007, Sept. 1, 1987; 53 
FR 5373, Feb. 24, 1988; 54 FR 25246, June 14, 1989; 56 FR 28487, June 
21, 1991; 56 FR 59878, Nov. 26, 1991; 58 FR 35408, July 1, 1993; 58 FR 
51238, Oct. 1, 1993; 58 FR 58961, Nov. 5, 1993; 62 FR 35097, June 30, 
1997; 63 FR 48446, Sept. 10, 1998; 64 FR 38576, July 19, 1999; 67 FR 
42721, June 25, 2002; 68 FR 44881, July 31, 2003; 69 FR 51569, Aug. 20, 
2004; 70 FR 19265, Apr. 13, 2005]



Sec. 199.8  Double coverage.

    (a) Introduction. (1) In enacting TRICARE legislation, Congress 
clearly has intended that TRICARE be the secondary payer to all health 
benefit, insurance and third-party payer plans. 10 U.S.C. 1079(j)(1) 
specifically provides that a benefit may not be paid under a plan 
(CHAMPUS) covered by this section in the case of a person enrolled in, 
or covered by, any other insurance, medical service, or health plan, 
including any plan offered by a third-party payer (as defined in 10 
U.S.C. 1095(h)(1)) to the extent that the benefit is also a benefit 
under the other plan, except in the case of a plan administered under 
title XIX of the Social Security Act (42 U.S.C. 1396 et seq.).
    (2) The provision in paragraph (a)(1) of this section is made 
applicable specifically to retired members, dependents, and survivors by 
10 U.S.C. 1086(g). The underlying intent, in addition to preventing 
waste of Federal resources, is to ensure that TRICARE beneficiaries 
receive maximum benefits while ensuring that the combined payments of 
TRICARE and other health and insurance plans do not exceed the total 
charges.
    (b) Double coverage plan. A double coverage plan is one of the 
following:
    (1) Insurance plan. An insurance plan is any plan or program that is 
designed to provide compensation or coverage for expenses incurred by a 
beneficiary for medical services and supplies. It includes plans or 
programs for which the beneficiary pays a premium to an issuing agent as 
well as those plans or programs to which the beneficiary is entitled as 
a result of employment or membership in, or association with, an 
organization or group.
    (2) Medical service or health plan. A medical service or health plan 
is any

[[Page 204]]

plan or program of an organized health care group, corporation, or other 
entity for the provision of health care to an individual from plan 
providers, both professional and institutional. It includes plans or 
programs for which the beneficiary pays a premium to an issuing agent as 
well as those plans or programs to which the beneficiary is entitled as 
a result of employment or membership in, or association with, an 
organization or group.
    (3) Third-party payer. A third-party payer means an entity that 
provides an insurance, medical service, or health plan by contract or 
agreement, including an automobile liability insurance or no-fault 
insurance carrier and a workers' compensation program or plan, and any 
other plan or program (e.g., homeowners insurance, etc.) that is 
designed to provide compensation or coverage for expenses incurred by a 
beneficiary for medical services or supplies. For purposes of the 
definition of ``third-party payer,'' an insurance, medical service or 
health plan includes a preferred provider organization, an insurance 
plan described as Medicare supplemental insurance, and a personal injury 
protection plan or medical payments benefit plan for personal injuries 
resulting from the operation of a motor vehicle.
    (4) Exceptions. Double coverage plans do not include:
    (i) Plans administered under title XIX of the Social Security Act 
(Medicaid);
    (ii) Coverage specifically designed to supplement CHAMPUS benefits 
(a health insurance policy or other health benefit plan that meets the 
definition and criteria under supplemental insurance plan as set forth 
in Sec. 199.2(b));
    (iii) Entitlement to receive care from Uniformed Services medical 
care facilities;
    (iv) Certain Federal Government programs, as prescribed by the 
Director, OCHAMPUS, that are designed to provide benefits to a distinct 
beneficiary population and for which entitlement does not derive from 
either premium payment of monetary contribution (for example, the Indian 
Health Service); or
    (v) State Victims of Crime Compensation Programs.
    (c) Application of double coverage provisions. CHAMPUS claims 
submitted for otherwise covered services or supplies and which involve 
double coverage shall be adjudicated as follows:
    (1) TRICARE last pay. For any claim that involves a double coverage 
plan as defined in paragraph (b) of this section, TRICARE shall be last 
pay except as may be authorized by the Director, TRICARE Management 
Activity, or a designee, pursuant to paragraph (c)(2) of this section. 
That is, TRICARE benefits may not be extended until all other double 
coverage plans have adjudicated the claim.
    (2) TRICARE advance payment. The Director, TRICARE Management 
Activity, or a designee, may authorize payment of a claim in advance of 
adjudication of the claim by a double coverage plan and recover, under 
Sec. 199.12, the TRICARE costs of health care incurred on behalf of the 
covered beneficiary under the following conditions:
    (i) The claim is submitted for health care services furnished to a 
covered beneficiary; and,
    (ii) The claim is identified as involving services for which a 
third-party payer, other than a primary medical insurer, may be liable.
    (3) Primary medical insurer. For purposes of paragraph (c)(2) of 
this section, a ``primary medical insurer'' is an insurance plan, 
medical service or health plan, or a third-party payer under this 
section, the primary or sole purpose of which is to provide or pay for 
health care services, supplies, or equipment. The term ``primary medical 
insurer'' does not include automobile liability insurance, no-fault 
insurance, workers' compensation program or plan, homeowners insurance, 
or any other similar third-party payer as may be designated by the 
Director, TRICARE Management Activity, or a designee, in any policy 
guidance or instructions issued in implementation of this Part.
    (4) Waiver of benefits. A CHAMPUS beneficiary may not elect to waive 
benefits under a double coverage plan and use CHAMPUS. Whenever double 
coverage exists, the provisions of this Section shall be applied.
    (5) Lack of payment by double coverage plan. Amounts that have been 
denied

[[Page 205]]

by a double coverage plan simply because a claim was not filed timely or 
because the beneficiary failed to meet some other requirement of 
coverage cannot be paid. If a statement from the double coverage plan as 
to how much that plan would have paid had the claim met the plan's 
requirements is provided to the CHAMPUS contractor, the claim can be 
processed as if the double coverage plan actually paid the amount shown 
on the statement. If no such statement is received, no payment from 
CHAMPUS is authorized.
    (6) Lack of payment by double coverage plan. Amounts that have been 
denied by a double coverage plan simply because a claim was not filed 
timely or because the beneficiary failed to meet some other requirement 
of coverage cannot be paid. If a statement from the double coverage plan 
as to how much that plan would have paid had the claim met the plan's 
requirements is provided to the CHAMPUS contractor, the claim can be 
processed as if the double coverage plan actually paid the amount shown 
on the statement. If no such statement is received, no payment from 
CHAMPUS is authorized.
    (d) Special considerations. (1) CHAMPUS and Medicare--(i) General 
rule. In any case in which a beneficiary eligible for both Medicare and 
CHAMPUS receives medical or dental care for which payment may be made 
under Medicare and CHAMPUS, Medicare is always the primary payer. For 
dependents of active duty members, payment will be determined in 
accordance to paragraph (c) of this section. For all other beneficiaries 
eligible for Medicare, the amount payable by CHAMPUS shall be the amount 
of the actual out-of-pocket costs incurred by the beneficiary for that 
care over the sum of the amount paid for that care under Medicare and 
the total of all amounts paid or payable by third party payers other 
than Medicare.
    (ii) Payment limit. The total CHAMPUS amount payable for care under 
paragraph (d)(1)(i) of this section may not exceed the total amount that 
would be paid under CHAMPUS if payment for that care was made solely 
under CHAMPUS.
    (iii) Application of general rule. In applying the general rule 
under paragraph (d)(1)(i) of this section, the first determination will 
be whether payment may be made under Medicare. For this purpose, 
Medicare exclusions, conditions, and limitations will be based for the 
determination.
    (A) For items or services or portions or segments of items or 
services for which payment may be made under Medicare, the CHAMPUS 
payment will be the amount of the beneficiary's actual out of pocket 
liability, minus the amount payable by Medicare, also minus amount 
payable by other third party payers, subject to the limit under 
paragraph (d)(1)(ii) of this section.
    (B) For items or services or segments of items or services for which 
no payment may be made under Medicare, the CHAMPUS payment will be the 
same as it would be for a CHAMPUS eligible retiree, dependent, or 
survivor beneficiary who is not Medicare eligible.
    (iv) Examples of applications of general rule. The following 
examples are illustrative. They are not all-inclusive.
    (A) In the case of a Medicare-eligible beneficiary receiving typical 
physician office visit services, Medicare payment generally will be 
made. CHAMPUS payment will be determined consistent with paragraph 
(d)(1)(iii)(A) of this section.
    (B) In the case of a Medicare-eligible beneficiary residing and 
receiving medical care overseas, Medicare payment generally may not be 
made. CHAMPUS payment will be determined consistent with paragraph 
(d)(1)(iii)(B) of this section.
    (C) In the case of a Medicare-eligible beneficiary receiving skilled 
nursing facility services a portion of which is payable by Medicare 
(such as during the first 100 days) and a portion of which is not 
payable by Medicare (such as after 100 days), CHAMPUS payment for the 
first portion will be determined consistent with paragraph 
(d)(1)(iii)(A) of this section and for the second portion consistent 
with paragraph (d)(1)(iii)(B) of this section.
    (v) Application of catastrophic cap. Only in cases in which CHAMPUS 
payment is determined consistent with paragraph (d)(1)(iii)(B) of this 
section,

[[Page 206]]

actual beneficiary out of pocket liability remaining after CHAMPUS 
payments will be counted for purposes of the annual catastrophic loss 
protection, set forth under Sec. 199.4(f)(10). When a family has met the 
cap, CHAMPUS will pay allowable amounts for remaining covered services 
through the end of that fiscal year.
    (vi) Effect of enrollment in Medicare+Choice plan. In the case of a 
beneficiary enrolled in a Medicare+Choice plan who receives items or 
services for which payment may be made under both the Medicare+Choice 
plan and CHAMPUS, a claim for the beneficiary's normal out-of-pocket 
costs under the Medicare+Choice plan may be submitted for CHAMPUS 
payment. However, consistent with paragraph (c)(4) of this section, out-
of-pocket costs do not include costs associated with unauthorized out-
of-system care or care otherwise obtained under circumstances that 
result in a denial or limitation of coverage for care that would have 
been covered or fully covered had the beneficiary met applicable 
requirements and procedures. In such cases, the CHAMPUS amount payable 
is limited to the amount that would have been paid if the beneficiary 
had received care covered by the Medicare+Choice plan.
    (vii) Effect of other double coverage plans, including medigap 
plans. CHAMPUS is second payer to other third-party payers of health 
insurance, including Medicare supplemental plans.
    (viii) Effect of employer-provided insurance. In the case of 
individuals with health insurance due to their current employment 
status, the employer insurance plan shall be first payer, Medicare shall 
be the second payer, and CHAMPUS shall be the tertiary payer.
    (2) CHAMPUS and Medicaid. Medicaid is not a double coverage plan. In 
any double coverage situation involving Medicaid, CHAMPUS is always the 
primary payer.
    (3) TRICARE and Workers' Compensation. TRICARE benefits are not 
payable for a work-related illness or injury that is covered under a 
workers' compensation program. Pursuant to paragraph (c)(2) of this 
section, however, the Director, TRICARE Management Activity, or a 
designee, may authorize payment of a claim involving a work-related 
illness or injury covered under a workers' compensation program in 
advance of adjudication and payment of the workers' compensation claim 
and then recover, under Sec. 199.12, the TRICARE costs of health care 
incurred on behalf of the covered beneficiary.
    (4) Extended Care Health Option (ECHO). For those services or 
supplies that require use of public facilities, an ECHO eligible 
beneficiary (or sponsor or guardian acting on behalf of the beneficiary) 
does not have the option of waiving the full use of public facilities 
which are determined by the Director, TRICARE Management Activity or 
designee to be available and adequate to meet a disability related need 
for which an ECHO benefit was requested. Benefits eligible for payment 
under a state plan for medical assistance under Title XIX of the Social 
Security Act (Medicaid) are never considered to be available in the 
adjudication of ECHO benefits.
    (5) Primary payer. The requirements of paragraph (d)(4) of this 
section notwithstanding, TRICARE is primary payer for services and items 
that are provided in accordance with the Individualized Family Service 
Plan as required by Part C of the Individuals with Disabilities 
Education Act and that are medically or psychologically necessary and 
otherwise allowable under the TRICARE Basic Program or the Extended Care 
Health Option.
    (e) Implementing instructions. The Director, OCHAMPUS, or a 
designee, shall issue such instructions, procedures, or guidelines, as 
necessary, to implement the intent of this section.

[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 62 
FR 54384, Oct. 20, 1997; 63 FR 59232, Nov. 3, 1998; 64 FR 46141, Aug. 
24, 1999; 66 FR 40607, Aug. 3, 2001; 67 FR 18827, Apr. 17, 2002; 68 FR 
6618, Feb. 10, 2003; 68 FR 23032, Apr. 30, 2003; 68 FR 32361, May 30, 
2003; 69 FR 51569, Aug. 20, 2004]



Sec. 199.9  Administrative remedies for fraud, abuse, and conflict of 
interest.

    (a) General. (1) This section sets forth provisions for invoking 
administrative remedies under CHAMPUS in situations involving fraud, 
abuse, or conflict

[[Page 207]]

of interest. The remedies impact institutional providers, professional 
providers, and beneficiaries (including parents, guardians, or other 
representatives of beneficiaries), and cover situations involving 
criminal fraud, civil fraud, administrative determinations of conflicts 
of interest or dual compensation, and administrative determinations of 
fraud or abuse. The administrative actions, remedies, and procedures may 
differ based upon whether the initial findings were made by a court of 
law, another agency, or the Director, OCHAMPUS (or designee).
    (2) This section also sets forth provisions for invoking 
administrative remedies in situations requiring administrative action to 
enforce provisions of law, regulation, and policy in the administration 
of CHAMPUS and to ensure quality of care for CHAMPUS beneficiaries. 
Examples of such situations may include a case in which it is discovered 
that a provider fails to meet requirements under this part to be an 
authorized CHAMPUS provider; a case in which the provider ceases to be 
qualified as a CHAMPUS provider because of suspension or revocation of 
the provider's license by a local licensing authority; or a case in 
which a provider meets the minimum requirements under this part but, 
nonetheless, it is determined that it is in the best interest of the 
CHAMPUS or CHAMPUS beneficiaries that the provider should not be an 
authorized CHAMPUS provider.
    (3) The administrative remedies set forth in this section are in 
addition to, and not in lieu of, any other remedies or sanctions 
authorized by law or regulation. For example, administrative action 
under this section may be taken in a particular case even if the same 
case will be or has been processed under the administrative procedures 
established by the Department of Defense to implement the Program Fraud 
Civil Remedies Act.
    (4) Providers seeking payment from the Federal Government through 
programs such as CHAMPUS have a duty to familiarize themselves with, and 
comply with, the program requirements.
    (5) CHAMPUS contractors and peer review organizations have a 
responsibility to apply provisions of this regulation in the discharge 
of their duties, and to report all known situations involving fraud, 
abuse, or conflict of interest. Failure to report known situations 
involving fraud, abuse, or conflict of interest will result in the 
withholding of administrative payments or other contractual remedies as 
determined by the Director, OCHAMPUS, or a designee.
    (b) Abuse. The term ``abuse'' generally describes incidents and 
practices which may directly or indirectly cause financial loss to the 
Government under CHAMPUS or to CHAMPUS beneficiaries. For the definition 
of abuse, see Sec. 199.2 of this part. The type of abuse to which 
CHAMPUS is most vulnerable is the CHAMPUS claim involving the 
overutilization of medical and health care services. To avoid abuse 
situations, providers have certain obligations to provide services and 
supplies under CHAMPUS which are: Furnished at the appropriate level and 
only when and to the extent medically necessary as determined under the 
provisions of this part; of a quality that meets professionally 
recognized standards of health care; and, supported by adequate medical 
documentation as may reasonably be required under this part by the 
Director, OCHAMPUS, or a designee, to evidence the medical necessity and 
quality of services furnished, as well as the appropriateness of the 
level of care. A provider's failure to comply with these obligations can 
result in sanctions being imposed by the Director, OCHAMPUS, or a 
designee, under this section. Even when administrative remedies are not 
initiated under this section, abuse situations under CHAMPUS are a 
sufficient basis for denying all or any part of CHAMPUS cost-sharing of 
individual claims. The types of abuse or possible abuse situations under 
CHAMPUS include, but are not limited, to the following:
    (1) A pattern of waiver of beneficiary (patient) cost-share or 
deductible.
    Note: In a case of a legitimate bad debt write-off of patient cost-
share or deductible, the provider's record should include documentation 
as to what efforts were made to collect the debt, when the debt was 
written

[[Page 208]]

off, why the debt was written off, and the amount of the debt written 
off.
    (2) Improper billing practices. Examples include, charging CHAMPUS 
beneficiaries rates for services and supplies that are in excess of 
those charges routinely charged by the provider to the general public, 
commercial health insurance carriers, or other federal health benefit 
entitlement programs for the same or similar services. (This includes 
dual fee schedules--one for CHAMPUS beneficiaries and one for other 
patients or third-party payers. This also includes billing other third-
party payers the same as CHAMPUS is billed but accepting less than the 
billed amount as reimbursement. However, a formal discount arrangement 
such as through a preferred provider organization, may not necessarily 
constitute an improper billing practice.)
    (3) A pattern of claims for services which are not medically 
necessary or, if medically necessary, not to the extent rendered. For 
example, a battery of diagnostic tests are given when, based on the 
diagnosis, fewer tests were needed.
    (4) Care of inferior quality. For example, consistently furnishing 
medical or mental health services that do not meet accepted standards of 
care.
    (5) Failure to maintain adequate medical or financial records.
    (6) Refusal to furnish or allow the Government (for example, 
OCHAMPUS) or Government contractors access to records related to CHAMPUS 
claims.
    (7) Billing substantially in excess of customary or reasonable 
charges unless it is determined by OCHAMPUS that the excess charges are 
justified by unusual circumstances or medical complications requiring 
additional time, effort, or expense in localities when it is accepted 
medical practice to make an extra charge in such cases.
    (8) Unauthorized use of the term ``Civilian Health and Medical 
Program of the Uniformed Services (CHAMPUS)'' in private business. While 
the use of the term ``CHAMPUS'' is not prohibited by federal statute, 
misrepresentation or deception by use of the term ``CHAMPUS'' to imply 
an official connection with the Government or to defraud CHAMPUS 
beneficiaries may be a violation of federal statute. Regardless of 
whether the actual use of the term ``CHAMPUS'' may be actionable under 
federal statute, the unauthorized or deceptive use of the term 
``CHAMPUS'' in private business will be considered abuse for purposes of 
this Section.
    (c) Fraud. For the definition of fraud, see Sec. 199.2 of this 
part. Examples of situations which, for the purpose of this part, are 
presumed to be fraud include, but are not limited to:
    (1) Submitting CHAMPUS claims (including billings by providers when 
the claim is submitted by the beneficiary) for services, supplies, or 
equipment not furnished to, or used by, CHAMPUS beneficiaries. For 
example, billing or claiming services when the provider was on call 
(other than an authorized standby charge) and did not provide any 
specific medical care to the beneficiary; providing services to an 
ineligible person and billing or submitting a claim for the services in 
the name of an eligible CHAMPUS beneficiary; billing or submitting a 
CHAMPUS claim for an office visit for a missed appointment; or billing 
or submitting a CHAMPUS claim for individual psychotherapy when a 
medical visit was the only service provided.
    (2) Billing or submitting a CHAMPUS claim for costs for noncovered 
or nonchargeable services, supplies, or equipment disguised as covered 
items. Some examples are: (i) Billings or CHAMPUS claims for services 
which would be covered except for the frequency or duration of the 
services, such as billing or submitting a claim for two one-hour 
psychotherapy sessions furnished on separate days when the actual 
service furnished was a two-hour therapy session on a single day, (ii) 
spreading the billing or claims for services over a time period that 
reduces the apparent frequency to a level that may be cost-shared by 
CHAMPUS, (iii) charging to CHAMPUS, directly or indirectly, costs not 
incurred or not reasonably allowable to the services billed or claimed 
under CHAMPUS, for example, costs attributable to nonprogram activities, 
other enterprises, or the personal expenses of principals, or (iv) 
billing or submitting claim on a fee-for-service basis when in fact a 
personal service to

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a specific patient was not performed and the service rendered is part of 
the overall management of, for example, the laboratory or x-ray 
department.
    (3) Breach of a provider participation agreement which results in 
the beneficiary (including parent, guardian, or other representative) 
being billed for amounts which exceed the CHAMPUS-determined allowable 
charge or cost.
    (4) Billings or CHAMPUS claims for supplies or equipment which are 
clearly unsuitable for the patient's needs or are so lacking in quality 
or sufficiency for the purpose as to be virtually worthless.
    (5) Billings or CHAMPUS claims which involve flagrant and persistent 
overutilization of services without proper regard for results, the 
patient's ailments, condition, medical needs, or the physician's orders.
    (6) Misrepresentations of dates, frequency, duration, or description 
of services rendered, or of the identity of the recipient of the 
services or the individual who rendered the services.
    (7) Submitting falsified or altered CHAMPUS claims or medical or 
mental health patient records which misrepresent the type, frequency, or 
duration of services or supplies or misrepresent the name(s) of the 
individual(s) who provided the services or supplies.
    (8) Duplicate billings or CHAMPUS claims. This includes billing or 
submitting CHAMPUS claims more than once for the same services, billing 
or submitting claims both to CHAMPUS and the beneficiary for the same 
services, or billing or submitting claims both to CHAMPUS and other 
third-parties (such as other health insurance or government agencies) 
for the same services, without making full disclosure of material facts 
or immediate, voluntary repayment or notification to CHAMPUS upon 
receipt of payments which combined exceed the CHAMPUS-determined 
allowable charge of the services involved.
    (9) Misrepresentation by a provider of his or her credentials or 
concealing information or business practices which bear on the 
provider's qualifications for authorized CHAMPUS provider status. For 
example, a provider representing that he or she has a qualifying 
doctorate in clinical psychology when the degree is not from a 
regionally accredited university.
    (10) Reciprocal billing. Billing or claiming services which were 
furnished by another provider or furnished by the billing provider in a 
capacity other than as billed or claimed. For example, practices such as 
the following: (i) One provider performing services for another provider 
and the latter bills as though he had actually performed the services 
(e.g., a weekend fill-in); (ii) providing service as an institutional 
employee and billing as a professional provider for the services; (iii) 
billing for professional services when the services were provided by 
another individual who was an institutional employee; (iv) billing for 
professional services at a higher provider profile than would be paid 
for the person actually furnishing the services, (for example, bills 
reflecting that an M.D. or Ph.D. performed the services when services 
were actually furnished by a licensed social worker, psychiatric nurse, 
or marriage and family counselor); or (v) an authorized provider billing 
for services which were actually furnished by an unauthorized or 
sanctioned provider.
    (11) Submitting CHAMPUS claims at a rate higher than a rate 
established between CHAMPUS and the provider, if such a rate has been 
established. For example, billing or claiming a rate in excess of the 
provider's most favored rate limitation specified in a residential 
treatment center agreement.
    (12) Arrangements by providers with employees, independent 
contractors, suppliers, or others which appear to be designed primarily 
to overcharge the CHAMPUS through various means (such as commissions, 
fee-splitting, and kickbacks) used to divert or conceal improper or 
unnecessary costs or profits.
    (13) Agreements or arrangements between the supplier and recipient 
(recipient could be either a provider or beneficiary, including the 
parent, guardian, or other representative of the beneficiary) that 
result in billings or claims which include unnecessary costs or charges 
to CHAMPUS.
    (d) Conflict of Interest. (1) Conflict of interest includes any 
situation where

[[Page 210]]

an active duty member of the Uniformed Services (including a reserve 
member while on active duty, active duty for training, or inactive duty 
training) or civilian employee of the United States Government, through 
an official federal position has the apparent or actual opportunity to 
exert, directly or indirectly, any influence on the referral of CHAMPUS 
beneficiaries to himself/herself or others with some potential for 
personal gain or the appearance of impropriety. Although individuals 
under contract to the Uniformed Services are not considered 
``employees,'' such individuals are subject to conflict of interest 
provisions by express terms of their contracts and, for purposes of this 
part, may be considered to be involved in conflict of interest 
situations as a result of their contract positions. In any situation 
involving potential conflict of interest of a Uniformed Service 
employee, the Director, OCHAMPUS, or a designee, may refer the case to 
the Uniformed Service concerned for appropriate review and action. If 
such a referral is made, a report of the results of findings and action 
taken shall be made to the Director, OCHAMPUS, by the Uniformed Service 
having jurisdiction within 90 days of receiving the referral.
    (2) CHAMPUS cost-sharing shall be denied on any claim where a 
conflict of interest situation is found to exist. This denial of cost-
sharing applies whether the claim is submitted by the individual who 
provided the care, the institutional provider in which the care was 
furnished, or the beneficiary.
    (e) Dual Compensation. (1) Federal law (5 U.S.C. 5536) prohibits 
active duty members of the Uniformed Services or employees (including 
part-time or intermittent) appointed in the civil service of the United 
States Government from receiving additional compensation from the 
Government above their normal pay and allowances. This prohibition 
applies to CHAMPUS payments for care furnished to CHAMPUS beneficiaries 
by active duty members of the Uniformed Services or civilian employees 
of the Government.
    (2) CHAMPUS cost-sharing of a claim shall be denied where the 
services or supplies were provided by an active duty member of the 
Uniformed Services or a civilian employee of the Government. This denial 
of CHAMPUS payment applies whether the claim for reimbursement is filed 
by the individual who provided the care, the institutional provider in 
which the care was furnished, or by the beneficiary.
    Note: Physicians of the National Health Service Corps (NHSC) may be 
assigned to areas where there is a shortage of medical providers. 
Although these physicians would be prohibited from accepting CHAMPUS 
payments as individuals if they are employees of the United States 
Government, the private organizations to which they may be assigned may 
be eligible for payment, as determined by the Director, OCHAMPUS, or a 
designee.
    (3) The prohibition against dual compensation does not apply to 
individuals under contract to the Uniformed Services or the Government.
    (f) Administrative Remedies. Administrative remedies available under 
CHAMPUS in this section are set forth below.
    (1) Provider exclusion or suspension. The Director, OCHAMPUS, or a 
designee, shall have the authority to exclude or suspend an otherwise 
authorized CHAMPUS provider from the program based on any criminal 
conviction or civil judgment involving fraud by the provider; fraud or 
abuse under CHAMPUS by the provider; exclusion or suspension of the 
provider by another agency of the Federal Government, a state, or local 
licensing authority; participation in a conflict of interest situation 
by the provider; or, when it is in the best interests of the program or 
CHAMPUS beneficiaries to exclude or suspend a provider under CHAMPUS. In 
all cases, the exclusion or suspension of a provider shall be effective 
15 calendar days from the date on the written initial determination 
issued under paragraph (h)(2) of this section.
    (i) Criminal conviction or civil judgment involving fraud by a 
provider--(A) Criminal conviction involving CHAMPUS fraud. A provider 
convicted by a Federal, state, foreign, or other court of competent 
jurisdiction of a crime involving CHAMPUS fraud, whether the crime is a 
felony or misdemeanor, shall be excluded or suspended from CHAMPUS for a 
period of time as determined by the Director, OCHAMPUS, or a designee. 
The CHAMPUS exclusion

[[Page 211]]

or suspension applies whether or not the provider, as a result of the 
conviction, receives probation or the sentence is suspended or deferred, 
and whether or not the conviction or sentence is under appeal.
    Note: Under the above paragraph (f)(1)(i)(A) of this section, an 
entity may be excluded or suspended from CHAMPUS whenever the entity is 
found to have a person, convicted of a crime involving CHAMPUS fraud, 
who has a direct or indirect ownership or control interest (see Sec. 
199.2) of 5 percent or more in the entity, or is an officer, director, 
agent or managing employee of the entity. The entity will have an 
opportunity to provide evidence to show that the ownership or control 
relationship has ceased. While an entity will not be excluded or 
suspended from CHAMPUS for employing a provider who has been sanctioned 
under this Section, the entity will be denied CHAMPUS payment for any 
services furnished by the sanctioned employee. As an authorized CHAMPUS 
provider, the entity is responsible for ensuring that all CHAMPUS claims 
involve services furnished to CHAMPUS beneficiaries by employees who 
meet all requirements under CHAMPUS for provider status.
    (B) Criminal conviction involving fraud of other Federal programs. 
Any provider convicted by a Federal, state, or other court of competent 
jurisdiction of a crime involving another Federal health care or benefit 
program (such as plans administered under titles XVIII and XIX of the 
Social Security Act, Federal Workmen's Compensation, and the Federal 
Employees Program (FEP) for employee health insurance), whether the 
crime is a felony or misdemeanor, shall be excluded from CHAMPUS for a 
period of time as determined by the Director, OCHAMPUS, or a designee. 
The CHAMPUS exclusion or suspension applies whether or not the provider, 
as a result of the conviction, receives probation or the sentence is 
suspended or deferred, and whether or not the conviction or sentence is 
under appeal.
    (C) Criminal conviction involving fraud of non-Federal programs. Any 
provider convicted by a Federal, state, foreign, or other court of 
competent jurisdiction of a crime involving any non-Federal health 
benefit program or private insurance involving health benefits may be 
excluded or suspended from CHAMPUS for a period of time as determined by 
the Director, OCHAMPUS, or a designee.
    (D) Civil fraud involving CHAMPUS. If a judgment involving civil 
fraud has been entered (whether or not it is appealed) against a 
provider in a civil action involving CHAMPUS benefits (whether or not 
other Federal programs are involved), the provider shall be excluded or 
suspended from CHAMPUS for a period determined by the Director, 
OCHAMPUS, or a designee.
    (E) Civil fraud involving other programs. If a judgment involving 
civil fraud has been entered against a provider (whether or not it has 
been appealed) in a civil action involving other public or private 
health care programs or health insurance, the provider may be excluded 
or suspended for a period of time determined by the Director, OCHAMPUS, 
or a designee.
    (ii) Administrative determination of fraud or abuse under CHAMPUS. 
If the Director, OCHAMPUS, or a designee, determines that a provider has 
committed fraud or abuse as defined in this part, the provider shall be 
excluded or suspended from CHAMPUS for a period of time determined by 
the Director, OCHAMPUS, or designee.
    (iii) Administrative determination that the provider has been 
excluded or suspended by another agency of the Federal Government, a 
state, or local licensing authority. Any provider who is excluded or 
suspended by any other Federal health care program (for example, 
Medicare), shall be excluded or suspended under CHAMPUS. A provider who 
has his/her credentials revoked through a Veterans Administration or 
Military Department credentials review process and who is excluded, 
suspended, terminated, retired, or separated, shall also be excluded or 
suspended under CHAMPUS. The period of time of exclusion or suspension 
shall be determined by the Director, OCHAMPUS, or a designee, pursuant 
to paragraph (g) of this section.
    (iv) Administrative determination that the provider has participated 
in a conflict of interest situation. The Director, OCHAMPUS, or a 
designee, may exclude or suspend any provider who has knowingly been 
involved in a conflict of interest situation under CHAMPUS.

[[Page 212]]

The period of time of exclusion or suspension shall be determined by the 
Director, OCHAMPUS, or a designee, pursuant to paragraph (g) of this 
section. For purposes of this administrative determination, it will be 
presumed that a CHAMPUS provider knowingly participated in a conflict of 
interest situation if the provider employs, in the treatment of a 
CHAMPUS beneficiary (resulting in a CHAMPUS claim), any medical 
personnel who are active duty members of the Uniformed Services or 
civilian employees of the Government. The burden of proof to rebut this 
presumption rests with the CHAMPUS provider. Two exceptions will be 
recognized to the presumption that a conflict of interest exists. First, 
indirect CHAMPUS payments may be made to private organizations to which 
physicians of the National Health Service Corps (NHSC) are assigned. 
Second, any off-duty Government medical personnel employed in an 
emergency room of an acute care hospital will be presumed not to have 
had the opportunity to exert, directly or indirectly, any influence on 
the referral of CHAMPUS beneficiaries; therefore, CHAMPUS payments may 
be made to the employing hospital provided the medical care was not 
furnished directly by the off-duty Government medical personnel in 
violation of dual compensation provisions.
    (v) Administrative determination that it is in the best interests of 
the CHAMPUS or CHAMPUS beneficiaries to exclude or suspend a provider--
(A) Unethical or improper practices or unprofessional conduct. (1) In 
most instances, unethical or improper practices or unprofessional 
conduct by a provider will be program abuse and subject the provider to 
exclusion or suspension for abuse. However, in some cases such practices 
and conduct may provide an independent basis for exclusion or suspension 
of the provider by the Director, OCHAMPUS, or a designee.
    (2) Such exclusions or suspensions may be based on findings or 
recommendations of state licensure boards, boards of quality assurance, 
other regulatory agencies, state medical societies, peer review 
organizations, or other professional associations.
    (B) In any other case in which the Director, OCHAMPUS (or designee), 
determines that exclusion or suspension of a provider is in the best 
interests of CHAMPUS or CHAMPUS beneficiaries. The Director, OCHAMPUS, 
or a designee, may exclude or suspend any provider if it is determined 
that the authorization of that particular provider under CHAMPUS poses 
an unreasonable potential for fraud, abuse, or professional misconduct. 
Any documented misconduct by the provider reflecting on the business or 
professional competence or integrity of the provider may be considered. 
Situations in which the Director, OCHAMPUS, or a designee, may take 
administrative action under this Section to protect CHAMPUS or CHAMPUS 
beneficiaries include, but are not limited to, a case in which it is 
determined that a provider poses an unreasonable potential cost to the 
Government to monitor the provider for fraud or abuse and to avoid the 
issuance of erroneous payments; or that the provider poses an 
unreasonable potential harm to the financial or health status of CHAMPUS 
beneficiaries; or that the provider poses any other unreasonable threat 
to the interests of CHAMPUS or CHAMPUS beneficiaries. One example of 
such circumstances involves a provider who, for his/her entire practice 
or for most of his/her practice, provides or bills for treatment that is 
not a CHAMPUS benefit, resulting in CHAMPUS frequently and repeatedly 
denying claims as non-covered services. This may occur when a 
professional provider furnishes sex therapy (a therapy which may be 
recognized by the provider's licensing authority but which is excluded 
from CHAMPUS coverage) and repeatedly submits CHAMPUS claims for the 
services.
    (2) Provider termination. The Director, OCHAMPUS, or a designee, 
shall terminate the provider status of any provider determined not to 
meet the qualifications established by this part to be an authorized 
CHAMPUS provider.
    (i) Effective date of termination. Except as provided in paragraph 
(g)(2)(ii) of this section, the termination shall be retroactive to the 
date on which the provider did not meet the requirements of this part.

[[Page 213]]

    (A) The retroactive effective date of termination shall not be 
limited due to the passage of time, erroneous payment of claims, or any 
other events which may be cited as a basis for CHAMPUS recognition of 
the provider notwithstanding the fact that the provider does not meet 
program qualifications. Unless specific provision is made in this part 
to ``grandfather'' or authorize a provider who does not otherwise meet 
the qualifications established by this part, all unqualified providers 
shall be terminated.
    (B) Any claims cost-shared or paid under CHAMPUS for services or 
supplies furnished by the provider on or after the effective date of 
termination, even when the effective date is retroactive, shall be 
deemed an erroneous payment unless specific exception is provided in 
this part. All erroneous payments are subject to collection under Sec. 
199.11 of this part.
    (C) If an institution is terminated as an authorized CHAMPUS 
provider, the institution shall immediately give written notice of the 
termination to any CHAMPUS beneficiary (or their parent, guardian, or 
other representative) admitted to, or receiving care at, the institution 
on or after the effective date of the termination. In addition, when an 
institution is terminated with an effective date of termination after 
the date of the initial determination terminating the provider, any 
beneficiary admitted to the institution prior to the effective date of 
termination (or their parent, guardian, or other representative) shall 
be notified by the Director, OCHAMPUS, or a designee, by certified mail 
of the termination, and that CHAMPUS cost-sharing of the beneficiary's 
care in the institution will cease as of the effective date of the 
termination. However, any beneficiary admitted to the institution prior 
to any grace period extended to the institution under paragraph 
(f)(2)(ii)(A) of this section shall be advised that, if the 
beneficiary's care otherwise qualifies for CHAMPUS coverage, CHAMPUS 
cost-sharing of the care in the institution will continue in order to 
provide a reasonable period of transition of care; however the 
transitional period of CHAMPUS cost-sharing shall not exceed the last 
day of the month following the month in which the institution's status 
as a CHAMPUS provider is terminated. (This authorized CHAMPUS cost-
sharing of the inpatient care received during the transition period is 
an exception to the general rule that CHAMPUS payment for care furnished 
after the effective date of termination of the provider's status shall 
be deemed to be an erroneous payment.) If a major violation under 
paragraph (f)(2)(ii)(B) of this section is involved, in order to ensure 
immediate action is taken to transfer beneficiaries to an approved 
provider, CHAMPUS cost-sharing shall not be authorized after the 
effective date of termination of the provider's status.
    (ii) Institutions not in compliance with CHAMPUS standards. If it is 
determined that an institution is not in compliance with one or more of 
the standards applicable to its specific category of institution under 
this part, the Director, OCHAMPUS, or a designee, shall take immediate 
steps to bring about compliance or terminate the status of the provider 
as an authorized CHAMPUS provider.
    (A) Minor violations. An institution determined to be in violation 
of one or more of the standards shall be advised by certified mail of 
the nature of the discrepancy or discrepancies and will be given a grace 
period of 30 days to effect appropriate corrections. The grace period 
may be extended at the discretion of the Director, OCHAMPUS, or a 
designee, but in no event shall the extension exceed 90 days.
    (1) CHAMPUS will not cost-share a claim for any beneficiary admitted 
during the grace period.
    (2) Any beneficiary admitted to the institution prior to the grace 
period (or the beneficiary's parent, guardian, or other representative) 
will be notified by the Director, OCHAMPUS, or a designee, in writing, 
of the minor violations and the grace period granted the institution to 
correct the violations. The beneficiary will also be advised that, if 
the beneficiary's care otherwise meets all requirements for CHAMPUS 
coverage, CHAMPUS cost-sharing will continue during the grace period.
    (3) If the institution submits written notice before the end of the 
grace period that corrective action has been

[[Page 214]]

taken and if the Director, OCHAMPUS, or a designee, determines that the 
corrective action has eliminated the minor violations, the provider will 
be advised that the institution is restored to full status as an 
authorized CHAMPUS provider as of 12:01 a.m. on the day written notice 
of correction was received by the Director, OCHAMPUS, or a designee, or 
the day on which acceptable corrective action was completed in the 
judgment of the Director, OCHAMPUS, or a designee. Any beneficiary 
admitted to the institution prior to the grace period will be notified 
by the Director, OCHAMPUS, or a designee, of the corrective action and 
that the provider continues to be an authorized CHAMPUS provider. 
CHAMPUS cost-sharing for any beneficiary admitted to the institution 
during the grace period shall be allowed only for care received after 
12:01 a.m. on the day written notice of correction was received by the 
Director, OCHAMPUS, or a designee, or the day on which acceptable 
corrective action was completed in the judgment of the Director, 
OCHAMPUS, or a designee.
    (4) If the institution has failed to give notification in writing 
before the end of the grace period that corrective action has been 
completed or, in the judgment of the Director, OCHAMPUS, or a designee, 
the institution has not completed acceptable corrective action during 
the grace period, the Director, OCHAMPUS, or a designee, may initiate 
action to terminate the provider as an authorized CHAMPUS provider.
    (B) Major violations. If the Director, OCHAMPUS, or a designee, 
determines that an institution is in violation of standards detrimental 
to life, safety, or health, or substantially in violation of approved 
treatment programs, immediate action shall be taken to terminate the 
institution as an authorized CHAMPUS provider. The institution shall be 
notified by telegram, certified mail, or express mail of the termination 
under this subparagraph, effective on receipt of the notice. The notice 
shall include a brief statement of the nature of violations resulting in 
the termination and advise the institution that an initial determination 
formalizing the administrative action of termination will be issued 
pursuant to paragraph (h)(3)(ii) of this section within 15 days.
    (3) Beneficiary sanctions. (i) With entitlement to CHAMPUS benefits 
based on public law, an eligible beneficiary will not be suspended or 
excluded from CHAMPUS. However, the Director, OCHAMPUS, or a designee, 
may take action deemed appropriate and reasonable to protect the 
Government from those beneficiaries (including sponsors, parents, 
guardians, or representatives of beneficiaries) who have submitted false 
claims.
    (ii) Pursuant to Sec. 199.11 of this part, the Director, OCHAMPUS, 
or a designee, may recover erroneous payments on claims involving fraud 
or false or misleading statements. Remedies for recovery of the 
erroneous payments include the use of offset against future CHAMPUS 
payments.
    (iii) Under policies adopted by the Director, OCHAMPUS, or a 
designee, individuals who, based on reliable information, have 
previously submitted fraudulent or false CHAMPUS claims, may be required 
to comply with any procedures (e.g., partial or total pre-payment audit 
or review, restriction to a designated primary care provider, etc.) 
which the Director, OCHAMPUS, or a designee, deems appropriate to ensure 
that their future medical care and CHAMPUS claims (including the medical 
care and CHAMPUS claims submitted by or for members of their family) are 
valid.
    (g) Period of exclusion, suspension, or termination--(1) Exclusions 
or suspensions. Except as otherwise required by paragraph (g)(1)(i) of 
this section, the Director, OCHAMPUS, or a designee, shall determine the 
period of exclusion or suspension for a provider using the factors set 
forth in paragraph (g)(1)(ii) of this section.
    (i) Exclusion or suspension of a provider based on the provider's 
exclusion or suspension by another agency of the Federal Government, a 
state, or a local licensing authority. If the administrative action 
under CHAMPUS is based solely on the provider's exclusion or suspension 
by another agency, state, or local licensing authority, the period of 
exclusion or suspension under CHAMPUS shall be for the same length of 
time of exclusion or suspension imposed by the

[[Page 215]]

other agency, state, or local licensing authority. The provider may 
request reinstatement as an authorized CHAMPUS provider if reinstatement 
is achieved under the other program prior to the end of the period of 
exclusion or suspension. If the administrative action under CHAMPUS is 
not based solely on the provider's exclusion or suspension by another 
agency, state, or local licensing authority, the minimum period of 
exclusion or suspension shall be for the same period of exclusion or 
suspension imposed by the other agency, state, or local licensing 
authority.
    (ii) Factors to be considered in determining the period of exclusion 
or suspension of providers under CHAMPUS. In determining the period of 
exclusion or suspension of a provider, the Director, OCHAMPUS, or a 
designee, may consider any or all of the following:
    (A) When the case concerns all or any part of the same issues which 
have been the subject of criminal conviction or civil judgment involving 
fraud by a provider:
    (1) The period(s) of sentence, probation, and other sanction imposed 
by court order against the provider may be presumed reasonable and 
adopted as the administrative period of exclusion or suspension under 
CHAMPUS, unless aggravating or mitigating factors exist.
    (2) If any aggravating factors exist, then cause exists for the 
Director, OCHAMPUS, or a designee, to consider the factors set forth in 
paragraph (g)(1)(ii)(B) of this section, in imposing a period of 
administrative exclusion or suspension in excess of the period(s) of 
sentence, probation, and/or other sanctions imposed by court order. 
Examples of aggravating factors include, but are not limited to:
    (i) An administrative determination by the Director, OCHAMPUS, or a 
designee, that the basis for administrative exclusion or suspension 
includes an act(s) of fraud or abuse under CHAMPUS in addition to, or 
unrelated to, an act(s) of fraud included in the court conviction or 
civil judgment.
    (ii) The fraudulent act(s) involved in the criminal conviction or 
civil judgment, or similar acts, were committed over a significant 
period of time; that is, one year or more.
    (iii) The act(s) of fraud or abuse had an adverse physical, mental, 
or financial impact on one or more CHAMPUS beneficiaries.
    (iv) The loss or potential loss to CHAMPUS is over $5,000. The 
entire amount of loss or potential loss to CHAMPUS due to acts of fraud 
and abuse will be considered, in addition to the amount of loss involved 
in the court conviction or civil judgment, regardless of whether full or 
partial restitution has been made to CHAMPUS.
    (v) The provider has a prior court record, criminal or civil, or 
administrative record or finding of fraud or abuse.
    (3) If any mitigating factors exist, then cause may exist for the 
Director, OCHAMPUS, or a designee, to reduce a period of administrative 
exclusion or suspension from any period(s) imposed by court conviction 
or civil judgment. Only the existence of either of the following two 
factors may be considered in mitigation:
    (i) The criminal conviction or civil judgment only involved three or 
fewer misdemeanor offenses, and the total of the estimated losses 
incurred (including any loss from act(s) not involved in the conviction 
or judgment) is less than $1,000, regardless of whether full or partial 
restitution has been made.
    (ii) The criminal or civil court proceedings establish that the 
provider had a mental, emotional or physical condition, prior to or 
contemporaneous with the commission of the act(s), that reduced the 
provider's criminal or civil culpability.
    (B) The Director, OCHAMPUS, or a designee, may consider the 
following factors in determining a reasonable period of exclusion or 
suspension of a provider under CHAMPUS:
    (1) The nature of the claims and the circumstances under which they 
were presented;
    (2) The degree of culpability;
    (3) History of prior offenses (including whether claims were 
submitted while the provider was either excluded or suspended pursuant 
to prior administrative action);
    (4) Number of claims involved;
    (5) Dollar amount of claims involved;

[[Page 216]]

    (6) Whether, if a crime was involved, it was a felony or 
misdemeanor;
    (7) If patients were injured financially, mentally, or physically; 
the number of patients; and the seriousness of the injury(ies);
    (8) The previous record of the provider under CHAMPUS;
    (9) Whether restitution has been made or arrangements for repayment 
accepted by the Government;
    (10) Whether the provider has resolved the conflict of interest 
situations or implemented procedures acceptable to the Director, 
OCHAMPUS, or a designee, which will prevent conflict of interest in the 
future; and,
    (11) Such other factors as may be deemed appropriate.
    (2) Terminations. When a provider's status as an authorized CHAMPUS 
provider is ended, other than through exclusion or suspension, the 
termination is based on a finding that the provider does not meet the 
qualifications to be an authorized provider, as set forth in this part. 
Therefore, the period of termination in all cases will be indefinite and 
will end only after the provider has successfully met the established 
qualifications for authorized provider status under CHAMPUS and has been 
reinstated under CHAMPUS. Except as otherwise provided in this 
subparagraph, the following guidelines control the termination of 
authorized CHAMPUS provider status for a provider whose license to 
practice (or, in the case of an institutional provider, to operate) has 
been temporarily or permanently suspended or revoked by the jurisdiction 
issuing the license.
    (i) Termination of the provider under CHAMPUS shall continue even if 
the provider obtains a license to practice in a second jurisdiction 
during the period of suspension or revocation of the provider's license 
by the original licensing jurisdiction. A provider who has licenses to 
practice in two or more jurisdictions and has one or more license(s) 
suspended or revoked will also be terminated as a CHAMPUS provider.
    (A) Professional providers shall remain terminated from the CHAMPUS 
until the jurisdiction(s) suspending or revoking the provider's 
license(s) to practice restores it or removes the impediment to 
restoration.
    (B) Institutional providers shall remain terminated under CHAMPUS 
until their license is restored. In the event the facility is sold, 
transferred, or reorganized as a new legal entity, and a license issued 
under a new name or to a different legal entity, the new entity must 
submit an application to be an authorized CHAMPUS provider.
    (ii) If the CHAMPUS provider status is terminated due to the loss of 
the provider's license, the effective date shall be retroactive to the 
date the provider lost the license; however, in the case of a 
professional provider who has licenses in two or more jurisdictions and 
submitted claims from a jurisdiction from which he/she had a valid 
license, the effective date of the termination will be 15 calendar days 
from the date of the written initial determination of termination for 
purposes of claims from the jurisdiction in which the provider still has 
a valid license.
    (h) Procedures for initiating and implementing the administrative 
remedies--(1) Temporary suspension of claims processing. (i) In general, 
temporary suspension of claims processing may be invoked to protect the 
interests of the Government for a period reasonably necessary to 
complete investigation or appropriate criminal, civil, and 
administrative proceedings. The temporary suspension only delays the 
ultimate payment of otherwise appropriate claims. When claims processing 
involving a participating provider is temporarily suspended, the 
participation agreement remains in full force and the provider cannot 
repudiate the agreement because of the delay in the final disposition of 
the claim(s). Once it has been determined appropriate to end the 
temporary suspension of claims processing, CHAMPUS claims which were the 
subject of the suspension and which are otherwise determined to be in 
compliance with the requirements of law and regulation, will be 
processed to completion and payment unless such action is deemed 
inappropriate as a result of criminal, civil, or administrative remedies 
ultimately invoked in the case.
    (ii) When adequate evidence exists to determine that a provider or 
beneficiary is submitting fraudulent or

[[Page 217]]

false claims or claims involving practices that may be fraud or abuse as 
defined by this part, the Director, OCHAMPUS, or a designee, may suspend 
CHAMPUS claims processing (in whole or in part) for claims submitted by 
the beneficiary or any CHAMPUS claims involving care furnished by the 
provider. The temporary suspension of claims processing for care 
furnished by a provider may be invoked against all such claims, whether 
or not the claims are submitted by the beneficiary or by the provider as 
a participating CHAMPUS provider. In cases involving a provider, notice 
of the suspension of claims processing may also be given to the 
beneficiary community either directly or indirectly through notice to 
appropriate military facilities, health benefit advisors, and the 
information or news media.
    (A) Adequate evidence is any information sufficient to support the 
reasonable belief that a particular act or omission has occurred.
    (B) Indictment or any other initiation of criminal charges, filing 
of a complaint for civil fraud, issuance of an administrative complaint 
under the Program Fraud Civil Remedies Act, or issuance of an initial 
determination under this part for submitting fraudulent or false claims 
or claims involving practices that may be fraud or abuse as defined by 
this part, shall constitute adequate evidence for invoking temporary 
suspension of claims processing.
    (iii) The Director, OCHAMPUS, or a designee, may suspend CHAMPUS 
claims processing without first notifying the provider or beneficiary of 
the intent to suspend payments. Following a decision to invoke a 
temporary suspension, however, the Director, OCHAMPUS, or a designee, 
shall issue written notice advising the provider or beneficiary that:
    (A) A temporary suspension of claims processing has been ordered and 
a statement of the basis of the decision to suspend payment. Unless the 
suspension is based on any of the actions set forth in paragraph 
(h)(1)(ii)(B) of this section, the notice shall describe the suspected 
acts or omissions in terms sufficient to place the provider or 
beneficiary on notice without disclosing the Government's evidence.
    (B) Within 30 days (or, upon written request received by OCHAMPUS 
during the 30 days and for good cause shown, within 60 days) from the 
date of the notice, the provider or beneficiary may:
    (1) Submit to the Director, OCHAMPUS, or a designee, in writing, 
information (including documentary evidence) and argument in opposition 
to the suspension, provided the additional specific information raises a 
genuine dispute over the material facts, or
    (2) Submit a written request to present in person evidence or 
argument to the Director, OCHAMPUS, or a designee. All such 
presentations shall be made at the Office of Civilian Health and Medical 
Program of the Uniformed Services (OCHAMPUS) in Aurora, Colorado, at the 
provider's or beneficiary's own expense.
    (C) Additional proceedings to determine disputed material facts may 
be conducted unless:
    (1) The suspension is based on any of the actions set forth in 
paragraph (h)(1)(ii)(B) of this section, or,
    (2) A determination is made, on the basis of the advice of the 
responsible Government official (e.g., an official of the Department of 
Justice, the designated Reviewing Official under the Program Fraud Civil 
Remedies Act, etc.), that the substantial interests of the Government in 
pending or contemplated legal or administrative proceedings based on the 
same facts as the suspension would be prejudiced.
    (iv) If the beneficiary or provider submits, either in writing or in 
person, additional information or argument in opposition to the 
suspension, the Director, OCHAMPUS, or a designee, shall issue a 
suspending official's decision which modifies, terminates, or leaves in 
force the suspension of claims processing. However, a decision to 
terminate or modify the suspension shall be without prejudice to the 
subsequent imposition of suspension of claims processing, imposition of 
sanctions under this Sec. 199.9, the recovery of erroneous payments 
under Sec. 199.11 of this part, or any other administrative or legal 
action authorized by law or regulation. The suspending official's 
decision shall be in writing as follows:

[[Page 218]]

    (A) A written decision based on all the information in the 
administrative record, including any submission by the beneficiary or 
provider, shall be final in a case:
    (1) Based on any of the actions set forth in paragraph (h)(1)(ii)(B) 
of this section,
    (2) In which the beneficiary's or provider's submission does not 
raise a genuine dispute over material facts, or
    (3) In which additional proceedings to determine disputed material 
facts have been denied on the basis of advice of a responsible 
Government official that the substantial interests of the Government in 
pending or contemplated legal or administrative proceedings would be 
prejudiced.
    (B) In a case in which additional proceedings are necessary as to 
disputed material facts, the suspending official's decision shall advise 
the beneficiary or provider that the case has been referred for handling 
as a hearing under Sec. 199.10 of this part.
    (v) A suspension of claims processing may be modified or terminated 
for reasons such as:
    (A) Newly discovered evidence;
    (B) Elimination of any of the causes for which the suspension was 
invoked; or
    (C) Other reasons the Director, OCHAMPUS, or a designee, deems 
appropriate.
    (vi) A suspension of claims processing shall be for a temporary 
period pending the completion of investigation and any ensuing legal or 
administrative proceedings, unless sooner terminated by the Director, 
OCHAMPUS, or a designee, or as provided in this subparagraph.
    (A) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless the Government official responsible for initiation 
of the legal or administrative action requests its extension, in which 
case it may be extended for an additional 6 months. In no event may a 
suspension extend beyond 18 months, unless legal or administrative 
proceedings have been initiated during that period.
    (B) The Director, OCHAMPUS, or a designee, shall notify the 
Government official responsible for initiation of the legal or 
administrative action of the proposed termination of the suspension, at 
least 30 days before the 12-month period expires, to give the official 
an opportunity to request an extension.
    (2) Notice of proposed administrative sanction. (i) A provider shall 
be notified in writing of the proposed action to exclude, suspend, or 
terminate the provider's status as an authorized CHAMPUS provider.
    (A) The notice shall state which sanction will be taken and the 
effective date of that sanction as determined in accordance with the 
provisions of this part.
    (B) The notice shall inform the provider of the situation(s), 
circumstance(s), or action(s) which form the basis for the proposed 
sanction and reference the paragraph of this part under which the 
administrative action is being taken.
    (C) The notice will be sent to the provider's last known business or 
office address (or home address if there is no known business address.)
    (D) The notice shall offer the provider an opportunity to respond 
within 30 days (or, upon written request received by OCHAMPUS during the 
30 days and for good cause shown, within 60 days) from the date on the 
notice with either:
    (1) Documentary evidence and written argument contesting the 
proposed action; or,
    (2) A written request to present in person evidence or argument to 
the Director, OCHAMPUS, or a designee. All such presentations shall be 
made at the Office of the Civilian Health and Medical Program of the 
Uniformed Services (OCHAMPUS) in Aurora, Colorado, at the provider's own 
expense.
    (3) Initial determination. (i) If, after the provider has exhausted, 
or failed to comply with, the procedures specified in paragraph (h)(2) 
of this section, the Director, OCHAMPUS, or a designee, decides to 
invoke an administrative remedy of exclusion, suspension, or termination 
of a provider under CHAMPUS, written notice of the decision will be sent 
to the provider by certified mail. Except in those cases where the 
sanction has a retroactive

[[Page 219]]

effective date, the written notice shall be dated no later than 15 days 
before the decision becomes effective. For terminations under paragraph 
(f)(2)(ii)(B) of this section, the initial determination may be issued 
without first implementing or exhausting the procedures specified in 
paragraph (h)(2) of this section.
    (ii) The initial determination shall include:
    (A) A statement of the sanction being invoked;
    (B) A statement of the effective date of the sanction;
    (C) A statement of the facts, circumstances, or actions which form 
the basis for the sanction and a discussion of any information submitted 
by the provider relevant to the sanction;
    (D) A statement of the factors considered in determining the period 
of sanction;
    (E) The earliest date on which a request for reinstatement under 
CHAMPUS will be accepted;
    (F) The requirements and procedures for reinstatement; and,
    (G) Notice of the available hearing upon request of the sanctioned 
provider.
    (4) Reinstatement procedures--(i) Restitution. (A) There is no 
entitlement under CHAMPUS for payment (cost-sharing) of any claim that 
involves either criminal or civil fraud as defined by law, or fraud or 
abuse or conflict of interest as defined by this part. In addition, 
except as specifically provided in this part, there is no entitlement 
under CHAMPUS for payment (cost-sharing) of any claim for services or 
supplies furnished by a provider who does not meet the requirements to 
be an authorized CHAMPUS provider. In any of the situations described 
above, CHAMPUS payment shall be denied whether the claim is submitted by 
the provider as a participating claim or by the beneficiary for 
reimbursement. If an erroneous payment has been issued in any such case, 
collection of the payment will be processed under Sec. 199.11 of this 
part.
    (B) If the Government has made erroneous payments to a provider 
because of claims involving fraud, abuse, or conflicts of interest, 
restitution of the erroneous payments shall be made before a request for 
reinstatement as a CHAMPUS authorized provider will be considered. 
Without restitution or resolution of the debt under Sec. 199.11 of this 
part, a provider shall not be reinstated as an authorized CHAMPUS 
provider. This is not an appealable issue under Sec. 199.10 of this 
part.
    (C) For purposes of authorization as a CHAMPUS provider, a provider 
who is excluded or suspended under this Sec. 199.9 and who submits 
participating claims for services furnished on or after the effective 
date of the exclusion or suspension is considered to have forfeited or 
waived any right or entitlement to bill the beneficiary for the care 
involved in the claims. Similarly, because a provider is expected to 
know the CHAMPUS requirements for qualification as an authorized 
provider, any participating provider who fails to meet the qualification 
requirements for CHAMPUS is considered to have forfeited or waived any 
right or entitlement to bill the beneficiary for the care involved in 
the CHAMPUS claims. If, in either situtation, the provider bills the 
beneficiary, restitution to the beneficiary may be required by the 
Director, OCHAMPUS, or a designee, as a condition for consideration of 
reinstatement as a CHAMPUS authorized provider.
    (ii) Terminated providers. A terminated provider who subsequently 
achieves the minimum qualifications to be an authorized CHAMPUS provider 
or who has had his/her license reinstated or the impediment to 
reinstatement removed by the appropriate licensing jurisdiction may 
submit a written request for reinstatement under CHAMPUS to the 
Director, OCHAMPUS, or a designee. If restitution or proper 
reinstatement of license is not at issue, the Director, OCHAMPUS, or a 
designee, will process the request for reinstatement under the 
procedures established for initial requests for authorized CHAMPUS 
provider status.
    (iii) Providers (other than entities) excluded or suspended under 
CHAMPUS. (A) A provider excluded or suspended from CHAMPUS (other than 
an entity excluded under Sec. 199.9(f)(1)(i)) may seek reinstatement by 
submitting a written request to the Director, OCHAMPUS,

[[Page 220]]

or a designee, any time after the date specified in the notice of 
exclusion or suspension or any earlier date specified in an appeal 
decision issued in the provider's appeal under Sec. 199.10 of this 
part. The request for reinstatement shall include:
    (1) Documentation sufficient to establish the provider's 
qualifications under this part to be a CHAMPUS authorized provider;
    (2) A statement from the provider setting forth the reasons why the 
provider should be reinstated, accompanied by written statements from 
professional associates, peer review bodies, and/or probation officers 
(if appropriate), attesting to their belief that the violations that led 
to exclusion or suspension will not be repeated.
    (B) A provider entity excluded from CHAMPUS under Sec. 
199.9(f)(1)(i) may seek reinstatement by submitting a written request to 
the Director, OCHAMPUS, or a designee, with documentation sufficient to 
establish the provider's qualifications under this part to be a CHAMPUS 
authorized provider and either:
    (1) Documentation showing the CHAMPUS reinstatement of the excluded 
individual provider whose conviction led to the CHAMPUS exclusion or 
suspension of the provider entity; or
    (2) Documentation acceptable to the Director, OCHAMPUS, or a 
designee, that shows that the individual whose conviction led to the 
entity's exclusion:
    (i) Has reduced his or her ownership or control interest in the 
entity below 5 percent; or
    (ii) Is no longer an officer, director, agent or managing employee 
of the entity; or
    (iii) Continues to maintain a 5 percent or more ownership or control 
interest in such entity, and that the entity due to circumstances beyond 
its control, is unable to obtain a divestiture.

    Note: Under paragraph (h)(4)(iii)(B)(2) of this section, the request 
for reinstatement may be submitted any time prior to the date specified 
in the notice of exclusion or suspension or an earlier date specified in 
the appeal decision issued under Sec. 199.10 of this part.

    (iv) Action on request for reinstatement. In order to reinstate a 
provider as a CHAMPUS authorized provider, the Director, OCHAMPUS, or a 
designee, must determine that:
    (A) The provider meets all requirements under this part to be an 
authorized CHAMPUS provider;
    (B) No additional criminal, civil, or administrative action has been 
taken or is being considered which could subject the provider to 
exclusion, suspension, or termination under this section;
    (C) In the case of a provider entity, verification has been made of 
the divestiture or termination of the owner, controlling party, officer, 
director, agent or managing employee whose conviction led to the 
entity's exclusion, or that the provider entity should be reinstated 
because the entity, due to circumstances beyond its control, cannot 
obtain a divestiture of the 5 percent or more ownership or controlling 
interest by the convicted party.
    (v) Notice of action on request for reinstatement--(A) Notice of 
approval of request. If the Director, OCHAMPUS, or a designee, approves 
the request for reinstatement, he or she will:
    (1) Give written notice to the sanctioned party specifying the date 
when the authorized provider status under CHAMPUS may resume; and
    (2) Give notice to those agencies and groups that were originally 
notified, in accordance with Sec. 199.9(k), of the imposition of the 
sanction. General notice may also be given to beneficiaries and other 
parties as deemed appropriate by the Director, OCHAMPUS, or a designee.
    (B) Notice of denial of request. If the Director, OCHAMPUS, or a 
designee, does not approve the request for reinstatement, written notice 
will be given to the provider. If established procedures for processing 
initial requests for authorized provider status are used to review the 
request for reinstatement, the established procedures may be used to 
provide the notice that the provider does not meet requirements of this 
part for such status. If the provider continues to be excluded, 
suspended, or terminated under the provisions of this section, the 
procedures set forth in this

[[Page 221]]

paragraph (h) may be followed in denying the provider's request for 
reinstatement.
    (5) Reversed or vacated convictions or civil judgments involving 
CHAMPUS fraud. (i) If a CHAMPUS provider is excluded or suspended solely 
on the basis of a criminal conviction or civil judgment involving a 
CHAMPUS fraud and the conviction or judgment is reversed or vacated on 
appeal, CHAMPUS will void the exclusion of a provider. Such action will 
not preclude the initiation of additional independent administrative 
action under this section or any other administrative remedy based on 
the same facts or events which were the subject of the criminal 
conviction or civil judgment.
    (ii) If an exclusion is voided under paragraph (h)(5)(i) of this 
section, CHAMPUS will make payment, either to the provider or the 
beneficiary (if the claim was not a participating claim) for otherwise 
authorized services under CHAMPUS that are furnished or performed during 
the period of exclusion.
    (iii) CHAMPUS will also void the exclusion of any entity that was 
excluded under Sec. 199.9(f)(1)(i) based solely on an individual's 
conviction that has been reversed or vacated on appeal.
    (iv) When CHAMPUS voids the exclusion of a provider or an entity, 
notice will be given to the agencies and others that were originally 
notified, in accordance with Sec. 199.9(k).
    (i) Evidence required for determinations to invoke administrative 
remedies--(1) General. Any relevant evidence may be used by the 
Director, OCHAMPUS, or a designee, if it is the type of evidence on 
which reasonable persons are accustomed to rely in the conduct of 
serious affairs, regardless of the existence of any common law or 
statutory rule that might make improper the admission of such evidence 
over objection in civil or criminal courts.
    (2) Types of evidence. The types of evidence which the Director, 
OCHAMPUS, or a designee, may rely on in reaching a determination to 
invoke administrative remedies under this section include but are not 
limited to the following:
    (i) Results of audits conducted by or on behalf of the Government. 
Such audits can include the results of 100 percent review of claims and 
related records or a statistically valid sample audit of the claims or 
records. A statistical sampling shall constitute prima facie evidence of 
the number and amount of claims and the instances of fraud, abuse, or 
conflict of interest.
    (ii) Reports, including sanction reports, from various sources 
including a peer review organization (PRO) for the area served by the 
provider; state or local licensing or certification authorities; peer or 
medical review consultants of the Government, including consultants for 
Government contractors; state or local professional societies; or other 
sources deemed appropriate by the Director, OCHAMPUS, or a designee.
    (iii) Orders or documents issued by Federal, state, foreign, or 
other courts of competent jurisdiction which issue findings and/or 
criminal convictions or civil judgments involving the provider, and 
administrative rulings, findings, or determinations by any agency of the 
Federal Government, a state, or local licensing or certification 
authority regarding the provider's status with that agency or authority.
    (j) Suspending Administrative Action. (1) All or any administrative 
action may be suspended by the Director, OCHAMPUS, or a designee, 
pending action in the case by the Department of Defense--Inspector 
General, Defense Criminal Investigative Service, or the Department of 
Justice (including the responsible United States Attorney). However, 
action by the Department of Defense--Inspector General or the Department 
of Justice, including investigation, criminal prosecution, or civil 
litigation, does not preclude administrative action by OCHAMPUS.
    (2) The normal OCHAMPUS procedure is to suspend action on the 
administrative process pending an investigation by the Department of 
Defense--Inspector General or final disposition by the Department of 
Justice.
    (3) Though OCHAMPUS administrative action is taken independently of 
any action by the Department of Defense-Inspector General or by the 
Department of Justice, once a case is forwarded to the Department of 
Defense-Inspector General or the Department of

[[Page 222]]

Justice for legal action (criminal or civil), administrative action may 
be held in abeyance.
    (4) In some instances there may be dual jurisdiction between 
agencies; as in, for example, the joint regulations issued by the 
Department of Justice and the Government Accounting Office regarding 
debt collection.
    (k) Notice to Other Agencies. (1) When CHAMPUS excludes, suspends, 
or terminates a provider, the Director, OCHAMPUS, or a designee, will 
notify other appropriate agencies (for example, the Department of Health 
and Human Services and the state licensing agency that issued the 
provider's license to practice) that the individual has been excluded, 
suspended, or terminated as an authorized provider under CHAMPUS. An 
exclusion, suspension, or termination action is considered a public 
record. Such notice can include the notices and determinations sent to 
the suspended provider and other public documents such as testimony 
given at a hearing or exhibits or depositions given in a lawsuit or 
hearing. Notice may also be given to Uniformed Services Military 
Treatment Facilities, Health Benefit Advisors, beneficiaries and 
sponsors, the news media, and institutional providers if inpatient care 
was involved.
    (2) If CHAMPUS has temporarily suspended claims processing, notice 
of such action normally will be given to the affected provider and 
Uniformed Services Medical Treatment Facilities, Health Benefits 
Advisors, beneficiaries, and sponsors. Notice may also be given to any 
information or news media and any other individual, professional 
provider, or institutional provider, as deemed appropriate. However, 
since a ``temporary suspension of claims processing'' is by definition 
not a final or formal agency action, the basis for the action generally 
will not be disclosed. It is noted that the basis for the action can be 
a result of questions arising from routine audits to investigation of 
possible criminal violations.
    (l) Compromise, Settlement, and Resolution Authority. (1) In lieu of 
invoking any remedy provided by this Section, the Director, OCHAMPUS, or 
a designee, may elect to enter into an agreement with the provider 
intended to correct the situation within an established time period and 
subject to any remedies deemed appropriate by the Director, OCHAMPUS, or 
a designee.
    (2) When it is in the best interest of CHAMPUS, the Director, 
OCHAMPUS, has the discretionary authority to waive an action or enter 
into compromise or settlement of administrative actions taken under this 
Sec. 199.9.
    (m) Government-wide effect of exclusion or suspension from CHAMPUS. 
As provided by section 2455 of the Federal Acquisition Streamlining Act 
of 1994, Pub. L. 103-355, October 13 1994, and Executive Order 12549, 
``Debarment and Suspension from Federal Financial and Nonfinancial 
Assistance Programs,'' February 18, 1986, any health care provider 
excluded or suspended from CHAMPUS under this section shall, as a 
general rule, also be debarred, suspended, or otherwise excluded from 
all other programs and activities involving Federal financial 
assistance. Among the other programs for which this debarment, 
suspension, or exclusion shall operate are the Medicare and Medicaid 
programs. This debarment, suspension, or termination requirement is 
subject to limited exceptions in the regulations governing the 
respective Federal programs affected. (Note: Other regulations related 
to this government-wide exclusion or suspension authority are 32 CFR 
Part 25 and 45 CFR Part 76.)

[54 FR 25246, June 14, 1989, as amended at 63 FR 48445, Sept. 10, 1998]



Sec. 199.10  Appeal and hearing procedures.

    (a) General. This Section sets forth the policies and procedures for 
appealing decisions made by OCHAMPUS, OCHAMPUSEUR, and CHAMPUS 
contractors adversely affecting the rights and liabilities of CHAMPUS 
beneficiaries, CHAMPUS participating providers, and providers denied the 
status of authorized provider under CHAMPUS. An appeal under CHAMPUS is 
an administrative review of program determinations made under the 
provisions of law and regulation. An appeal cannot challenge the 
propriety, equity, or legality of any provision of law or regulation.

[[Page 223]]

    (1) Initial determination. (i) Notice of initial determination and 
right to appeal. (A) OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors 
shall mail notices of initial determinations to the affected provider or 
CHAMPUS beneficiary (or representative) at the last known address. For 
beneficiaries who are under 18 years of age or who are incompetent, a 
notice issued to the parent, guardian, or other representative, under 
established CHAMPUS procedures, constitutes notice to the beneficiary.
    (B) CHAMPUS contractors and OCHAMPUSEUR shall notify a provider of 
an initial determination on a claim only if the provider participated in 
the claim. (See Sec. 199.7 of this part.)
    (C) CHAMPUS peer review organizations shall notify providers and 
fiscal intermediaries of a denial determination on a claim.
    (D) Notice of an initial determination on a claim processed by a 
CHAMPUS contractor or OCHAMPUSEUR normally will be made on a CHAMPUS 
Explanation of Benefits (CEOB) form.
    (E) Each notice of an initial determination on a request for benefit 
authorization, a request by a provider for approval as an authorized 
CHAMPUS provider, or a decision to disqualify or exclude a provider as 
an authorized provider under CHAMPUS shall state the reason for the 
determination and the underlying facts supporting the determination.
    (F) In any case when the initial determination is adverse to the 
beneficiary or participating provider, or to the provider seeking 
approval as an authorized CHAMPUS provider, the notice shall include a 
statement of the beneficiary's or provider's right to appeal the 
determination. The procedure for filing the appeal also shall be 
explained.
    (ii) Effect of initial determination. (A) The initial determination 
is final unless appealed in accordance with this chapter, or unless the 
initial determination is reopened by the TRICARE Management Activity, 
the CHAMPUS contractor, or the CHAMPUS peer review organization.
    (B) An initial determination involving a CHAMPUS beneficiary 
entitled to Medicare Part A, who is enrolled in Medicare Part B, may be 
appealed by the beneficiary or their provider under this section of this 
Part only when the claimed services or supplies are payable by CHAMPUS 
and are not payable under Medicare. Both Medicare and CHAMPUS offer an 
appeal process when a claim for healthcare services or supplies is 
denied and most healthcare services and supplies are a benefit payable 
under both Medicare and CHAMPUS. In order to avoid confusion on the part 
of beneficiaries and providers and to expedite the appeal process, 
services and supplies denied payment by Medicare will not be considered 
for coverage by CHAMPUS if the Medicare denial of payment is appealable 
under Medicare. Because such claims are not considered for payment by 
CHAMPUS, there can be no CHAMPUS appeal. If, however, a Medicare claim 
or appeal results in some payment by Medicare, the services and supplies 
paid by Medicare will be considered for payment by CHAMPUS. In that 
situation, any decision to deny CHAMPUS payment will be appealable under 
this section. The following examples of CHAMPUS appealable issues 
involving Medicare-eligible CHAMPUS beneficiaries are illustrative; they 
are not all-inclusive.
    (1) If Medicare processes a claim for a healthcare service or supply 
that is a Medicare benefit and the claim is denied by Medicare for a 
patient-specific reason, the claim is appealable through the Medicare 
appeal process. The Medicare decision will be final if the claim is 
denied by Medicare. The claimed services or supplies will not be 
considered for CHAMPUS payment and there is no CHAMPUS appeal of the 
CHAMPUS decision denying the claim.
    (2) If Medicare processes a claim for a healthcare service or supply 
that is a Medicare benefit and the claim is paid, either on initial 
submission or as a result of a Medicare appeal decision, the claim will 
be submitted to CHAMPUS for processing as a second payer to Medicare. If 
CHAMPUS denies payment of the claim, the Medicare-eligible beneficiary 
or their provider have the same appeal rights as other CHAMPUS 
beneficiaries and their providers under this section.

[[Page 224]]

    (3) If Medicare processes a claim and the claim is denied by 
Medicare because it is not a healthcare service or supply that is a 
benefit under Medicare, the claim is submitted to CHAMPUS. CHAMPUS will 
process the claim under this Part 199 as primary payer (or as secondary 
payer if another double coverage plan exists). If any part of the claim 
is denied, the Medicare-eligible beneficiary and their provider will 
have the same appeal rights as other CHAMPUS beneficiaries and their 
providers under this section.
    (2) Participation in an appeal. Participation in an appeal is 
limited to any party to the initial determination, including CHAMPUS, 
and authorized representatives of the parties. Any party to the initial 
determination, except CHAMPUS, may appeal an adverse determination. The 
appealing party is the party who actually files the appeal.
    (i) Parties to the initial determination. For purposes of the 
CHAMPUS appeals and hearing procedures, the following are not parties to 
an initial determination and are not entitled to administrative review 
under this section.
    (A) A provider disqualified or excluded as an authorized provider 
under CHAMPUS based on a determination of abuse or fraudulent practices 
or procedures under another Federal or federally funded program is not a 
party to the CHAMPUS action and may not appeal under this section.
    (B) A beneficiary who has an interest in receiving care or has 
received care from a particular provider cannot be an appealing party 
regarding the exclusion, suspension, or termination of the provider 
under Sec. 199.9 of this part.
    (C) A sponsor or parent of a beneficiary under 18 years of age or 
guardian or an incompetent beneficiary is not a party to the initial 
determination and may not serve as the appealing party, although such 
persons may represent the appealing party in an appeal.
    (D) A third party, such as an insurance company, is not a party to 
the initial determination and is not entitled to appeal even though it 
may have an indirect interest in the initial determination.
    (E) A nonparticipating provider is not a party to the initial 
determination and may not appeal.
    (ii) Representative. Any party to the initial determination may 
appoint a representative to act on behalf of the party in connection 
with an appeal. Generally, the parent of a minor beneficiary and the 
legally appointed guardian of an incompetent beneficiary shall be 
presumed to have been appointed representative without specific 
designation by the beneficiary. The custodial parent or legal guardian 
(appointed by a cognizant court) of a minor beneficiary may initiate an 
appeal based on the above presumption. However, should a minor 
beneficiary turn 18 years of age during the course of an appeal, then 
any further requests to appeal on behalf of the beneficiary must be from 
the beneficiary or pursuant to the written authorization of the 
beneficiary appointing a representative. For example, if the beneficiary 
is 17 years of age and the sponsor (who is a custodial parent) requests 
a formal review, absent written objection by the minor beneficiary, the 
sponsor is presumed to be acting on behalf of the minor beneficiary. 
Following the issuance of the formal review, the sponsor requests a 
hearing; however if, at the time of the request for a hearing, the 
beneficiary is 18 years of age or older, the request must either be by 
the beneficiary or the beneficiary must appoint a representative. The 
sponsor, in this example, could not pursue the request for hearing 
without being appointed by the beneficiary as the beneficiary's 
representative.
    (A) The representative shall have the same authority as the party to 
the appeal and notice given to the representative shall constitute 
notice required to be given to the party under this part.
    (B) To avoid possible conflicts of interest, an officer or employee 
of the United States, such as an employee or member of a Uniformed 
Service, including an employee or staff member of a Uniformed Service 
legal office, or a CHAMPUS advisor, subject to the exceptions in 18 
U.S.C. 205, is not eligible to serve as a representative. An exception 
usually is made for an employee or member of a Uniformed Service who

[[Page 225]]

represents an immediate family member. In addition, the Director, 
OCHAMPUS, or designee, may appoint an officer or employee of the United 
States as the CHAMPUS representative at a hearing.
    (3) Burden of proof. The burden of proof is on the appealing party 
to establish affirmatively by substantial evidence the appealing party's 
entitlement under law and this part to the authorization of CHAMPUS 
benefits, approval of authorized CHAMPUS provider status, or removal of 
sanctions imposed under Sec. 199.9 of this part. If a presumption 
exists under the provisions of this part or information constitutes 
prima facie evidence under the provisions of this part, the appealing 
party must produce evidence reasonably sufficient to rebut the 
presumption or prima facie evidence as part of the appealing party's 
burden of proof. CHAMPUS shall not pay any part of the cost or fee, 
including attorney fees, associated with producing or submitting 
evidence in support of an appeal.
    (4) Evidence in appeal and hearing cases. Any relevant evidence may 
be used in the administrative appeal and hearing process if it is the 
type of evidence on which reasonable persons are accustomed to rely in 
the conduct of serious affairs, regardless of the existence of any 
common law or statutory rule that might make improper the admission of 
such evidence over objection in civil or criminal courts.
    (5) Late filing. If a request for reconsideration, formal review, or 
hearings is filed after the time permitted in this section, written 
notice shall be issued denying the request. Late filing may be permitted 
only if the appealing party reasonably can demonstrate to the 
satisfaction of the Director, OCHAMPUS, or a designee, that the timely 
filing of the request was not feasible due to extraordinary 
circumstances over which the appealing party had no practical control. 
Each request for an exception to the filing requirement will be 
considered on its own merits. The decision of the Director, OCHAMPUS, or 
a designee, on the request for an exception to the filing requirement 
shall be final.
    (6) Appealable issue. An appealable issue is required in order for 
an adverse determination to be appealed under the provisions of this 
section. Examples of issues that are not appealable under this section 
include:
    (i) A dispute regarding a requirement of the law or regulation.
    (ii) The amount of the CHAMPUS-determined allowable cost or charge, 
since the methodology for determining allowable costs or charges is 
established by this part.
    (iii) The establishment of diagnosis-related groups (DRGs), or the 
methodology for the classification of inpatient discharges within the 
DRGs, or the weighting factors that reflect the relative hospital 
resources used with respect to discharges within each DRG, since each of 
these is established by this part.
    (iv) Certain other issues on the basis that the authority for the 
initial determination is not vested in CHAMPUS. Such issues include but 
are not limited to the following examples:
    (A) Determination of a person's eligibility as a CHAMPUS beneficiary 
is the responsibility of the appropriate Uniformed Service. Although 
OCHAMPUS, OCHAMPUSEUR, and CHAMPUS contractors must make determinations 
concerning a beneficiary's eligibility in order to ensure proper 
disbursement of appropriated funds on each CHAMPUS claim processed, 
ultimate responsibility for resolving a beneficiary's eligibility rests 
with the Uniformed Services. Accordingly, disputed question of fact 
concerning a beneficiary's eligibility will not be considered an 
appealable issue under the provisions of this section, but shall be 
resolved in accordance with Sec. 199.3 of this part.
    (B) Similarly, decisions relating to the issuance of a 
Nonavailability Statement (DD Form 1251) in each case are made by the 
Uniformed Services. Disputes over the need for a Nonavailability 
Statement or a refusal to issue a Nonavailability Statement are not 
appealable under this section. The one exception is when a dispute 
arises over whether the facts of the case demonstrate a medical 
emergency for which a Nonavailability Statement is not required. Denial 
of payment in this one situation is an appealable issue.
    (C) Any sanction, including the period of the sanction, imposed 
under Sec. 199.9 of this part which is based solely

[[Page 226]]

on a provider's exclusion or suspension by another agency of the Federal 
Government, a state, or a local licensing authority is not appealable 
under this section. The provider must exhaust administrative appeal 
rights offered by the other agency that made the initial determination 
to exclude or suspend the provider. Similarly, any sanction imposed 
under Sec. 199.9 which is based solely on a criminal conviction or 
civil judgment against the provider is not appealable under this 
section. If the sanction imposed under Sec. 199.9 is not based solely 
on the provider's criminal conviction or civil judgment or on the 
provider's exclusion or suspension by another agency of the Federal 
Government, a state, or a local licensing authority, that portion of the 
CHAMPUS administrative determination which is in addition to the 
criminal conviction/civil judgment or exclusion/suspension by the other 
agency may be appealed under this section.
    (v) A decision by the Director, OCHAMPUS, or a designee, as a 
suspending official when the decision is final under the provisions of 
Sec. 199.9(h)(1)(iv)(A).
    (7) Amount in dispute. An amount in dispute is required for an 
adverse determination to be appealed under the provisions of this 
section, except as set forth below.
    (i) The amount in dispute is calculated as the amount of money 
CHAMPUS would pay if the services and supplies involved in dispute were 
determined to be authorized CHAMPUS benefits. Examples of amounts of 
money that are excluded by the Regulation from CHAMPUS payments for 
authorized benefits include, but are not limited to:
    (A) Amounts in excess of the CHAMPUS-determined allowable charge or 
cost.
    (B) The beneficiary's CHAMPUS deductible and cost-share amounts.
    (C) Amounts that the CHAMPUS beneficiary, or parent, guardian, or 
other responsible person has no legal obligation to pay.
    (D) Amounts excluded under the provisions of Sec. 199.8 of this 
part.
    (ii) The amount of dispute for appeals involving a denial of a 
request for authorization in advance of obtaining care shall be the 
estimated allowable charge or cost for the services requested.
    (iii) There is no requirement for an amount in dispute when the 
appealable issue involves a denial of a provider's request for approval 
as an authorized CHAMPUS provider or the determination to exclude, 
suspend, or terminate a provider's authorized CHAMPUS provider status.
    (iv) Individual claims may be combined to meet the required amount 
in dispute if all of the following exist:
    (A) The claims involve the same beneficiary.
    (B) The claims involve the same issue.
    (C) At least one of the claims so combined has had a reconsideration 
decision issued by OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer 
review organization.
    Note: A request for administrative review under this appeal process 
which involves a dispute regarding a requirement of law or regulation 
(paragraph (a)(6)(i) of this section) or does not involve a sufficient 
amount in dispute (paragraph (a)(7) of this section) may not be rejected 
at the reconsideration level of appeal. However, an appeal shall involve 
an appealable issue and sufficient amount in dispute under these 
paragraphs to be granted a formal review or hearing.
    (8) Levels of appeal. The sequence and procedures of a CHAMPUS 
appeal vary, depending on whether the initial determination was made by 
OCHAMPUS, OCHAMPUSEUR, a CHAMPUS contractor, or a CHAMPUS peer review 
organization.
    (i) Appeal levels for initial determination made by OCHAMPUSEUR, 
CHAMPUS contractor, or CHAMPUS peer review organization. (A) 
Reconsideration by OCHAMPUSEUR, CHAMPUS contractor, or CHAMPUS peer 
review organization.
    (B) Formal review by OCHAMPUS (except for CHAMPUS peer review 
organization reconsiderations).
    (C) Hearing.
    (ii) Appeal levels for initial determination made by OCHAMPUS. (A) 
Reconsideration by OCHAMPUSEUR or CHAMPUS contractor.
    (B) Formal review by OCHAMPUS except (1) initial determinations 
involving the suspension of claims processing where the Director, 
OCHAMPUS, or a

[[Page 227]]

designee, determines that additional proceedings are necessary as to 
disputed material facts and the suspending official's decision is not 
final under the provisions of Sec. 199.9(h) (1)(iv)(A) or (2) initial 
determinations involving the sanctioning (exclusion, suspension, or 
termination) of CHAMPUS providers. Initial determinations involving 
these matters shall be appealed directly to the hearing level.
    (C) Hearing.
    (9) Appeal decision. An appeal decision at any level may address all 
pertinent issues which arise under the appeal or are otherwise presented 
by the information in the case record (for example, the entire episode 
of care in the appeal), and shall not be limited to addressing the 
specific issue appealed by a party. In the case of sanctions imposed 
under Sec. 199.9, the final decision may affirm, increase or reduce the 
sanction period imposed by CHAMPUS, or otherwise modify or reverse the 
imposition of the sanction.
    (b) Reconsideration. Any party to the initial determination made by 
the CHAMPUS contractor, or a CHAMPUS peer review organization may 
request reconsideration.
    (1) Requesting a reconsideration--(i) Written request required. The 
request must be in writing, shall state the specific matter in dispute, 
and shall include a copy of the notice of initial determination (such as 
the CEOB form) made by OCHAMPUSEUR, the CHAMPUS contractor, or the 
CHAMPUS peer review organization.
    (ii) Where to file. The request shall be submitted to the office 
that made the initial determination (i.e., OCHAMPUSEUR, the CHAMPUS 
contractor, or the CHAMPUS peer review organization) or any other 
CHAMPUS contractor designated in the notice of initial determination.
    (iii) Allowed time to file. The request must be mailed within 90 
days after the date of the notice of initial determination.
    (iv) Official filing date. A request for a reconsideration shall be 
deemed filed on the date it is mailed and postmarked. If the request 
does not have a postmark, it shall be deemed filed on the date received 
by OCHAMPUSEUR, the CHAMPUS contractor or the CHAMPUS peer review 
organization.
    (2) The reconsideration process. The purpose of the reconsideration 
is to determine whether the initial determination was made in accordance 
with law, regulation, policies, and guidelines in effect at the time the 
care was provided or requested, or at the time of the initial 
determination and/or reconsideration decision involving a provider 
request for approval as an authorized provider under CHAMPUS. The 
reconsideration is performed by a member of the OCHAMPUSEUR, CHAMPUS 
contractor, or CHAMPUS peer review organization staff who was not 
involved in making the initial determination and is a thorough and 
independent review of the case. The reconsideration is based on the 
information submitted that led to the initial determination, plus any 
additional information that the appealing party may submit or 
OCHAMPUSEUR, the CHAMPUS contractor, or CHAMPUS peer review organization 
may obtain.
    (3) Timeliness of reconsideration determination. OCHAMPUSEUR, the 
CHAMPUS contractor, or CHAMPUS peer review organization normally shall 
issue its reconsideration determination no later than 60 days from the 
date of receipt of the request for reconsideration by OCHAMPUSEUR, the 
CHAMPUS contractor, or the CHAMPUS peer review organization.
    (4) Notice of reconsideration determination. OCHAMPUSEUR, the 
CHAMPUS contractor, or the CHAMPUS peer review organization shall issue 
a written notice of the reconsideration determination to the appealing 
party at his or her last known address. The notice of the 
reconsideration must contain the following elements:
    (i) A statement of the issues or issue under appeal.
    (ii) The provisions of law, regulation, policies, and guidelines 
that apply to the issue or issues under appeal.
    (iii) A discussion of the original and additional information that 
is relevant to the issue or issues under appeal.
    (iv) Whether the reconsideration upholds the initial determination 
or reverses it, in whole or in part, and the rationale for the action.

[[Page 228]]

    (v) A statement of the right to appeal further in any case when the 
reconsideration determination is less than fully favorable to the 
appealing party and the amount in dispute is $50 or more.
    (5) Effect of reconsideration determination. The reconsideration 
determination is final if either of the following exist:
    (i) The amount in dispute is less than $50.
    (ii) Appeal rights have been offered, but a request for formal 
review is not received by OCHAMPUS within 60 days of the date of the 
notice of the reconsideration determination.
    (c) Formal review. Except as explained in this paragraph, any party 
to an initial determination made by OCHAMPUS, or a reconsideration 
determination made by the CHAMPUS contractor, may request a formal 
review by OCHAMPUS if the party is dissatisfied with the initial or 
reconsideration determination unless the initial or reconsideration 
determination is final under paragraph (b)(5) of this section; involves 
the sanctioning of a provider by the exclusion, suspension or 
termination of authorized provider status; involves a written decision 
issued pursuant to Sec. 199.9(h)(1)(iv)(A) regarding the temporary 
suspension of claims processing; or involves a reconsideration 
determination by a CHAMPUS peer review organization. A hearing, but not 
a formal review level of appeal, may be available to a party to an 
initial determination involving the sanctioning of a provider or to a 
party to a written decision involving a temporary suspension of claims 
processing. A beneficiary (or an authorized representative of a 
beneficiary), but not a provider (except as provided in Sec. 199.15), 
may request a hearing, but not a formal review, of a reconsideration 
determination made by a CHAMPUS peer review organization.
    (1) Requesting a formal review. (i) Written request required. The 
request must be in writing, shall state the specific matter in dispute, 
shall include copies of the written determination (notice of 
reconsideration determination or OCHAMPUS initial determination) being 
appealed, and shall include any additional information or documents not 
submitted previously.
    (ii) Where to file. The request shall be submitted to the Chief, 
Office of Appeals and Hearings, TRICARE Management Activity, 16401 East 
Centretech Parkway, Auroa, Colorado 80011-9066.
    (iii) Allowed time to file. The request shall be mailed within 60 
days after the date of the notice of the reconsideration determination 
or OCHAMPUS initial determination being appealed.
    (iv) Official filing date. A request for a formal review shall be 
deemed filed on the date it is mailed and postmarked. If the request 
does not have a postmark, it shall be deemed filed on the date received 
by OCHAMPUS.
    (2) The formal review process. The purpose of the formal review is 
to determine whether the initial determination or reconsideration 
determination was made in accordance with law, regulation, policies, and 
guidelines in effect at the time the care was provided or requested or 
at the time of the initial determination, reconsideration, or formal 
review decision involving a provider request for approval as an 
authorized CHAMPUS provider. The formal review is performed by the 
Chief, Office of Appeals and Hearings, OCHAMPUS, or a designee, and is a 
thorough review of the case. The formal review determination shall be 
based on the information, upon which the initial determination and/or 
reconsideration determination was based, and any additional information 
the appealing party may submit or OCHAMPUS may obtain.
    (3) Timeliness of formal review determination. The Chief, Office of 
Appeals and Hearings, OCHAMPUS, or a designee normally shall issue the 
formal review determination no later than 90 days from the date of 
receipt of the request for formal review by the OCHAMPUS.
    (4) Notice of formal review determination. The Chief, Office of 
Appeals and Hearings, OCHAMPUS, or a designee shall issue a written 
notice of the formal review determination to the appealing party at his 
or her last known address. The notice of the formal review determination 
must contain the following elements:
    (i) A statement of the issue or issues under appeal.

[[Page 229]]

    (ii) The provisions of law, regulation, policies, and guidelines 
that apply to the issue or issues under appeal.
    (iii) A discussion of the original and additional information that 
is relevant to the issue or issues under appeal.
    (iv) Whether the formal review upholds the prior determination or 
determinations or reverses the prior determination or determinations in 
whole or in part and the rationale for the action.
    (v) A statement of the right to request a hearing in any case when 
the formal review determination is less than fully favorable, the issue 
is appealable, and the amount in dispute is $300 or more.
    (5) Effect of formal review determination. The formal review 
determination is final if one or more of the following exist:
    (i) The issue is not appealable. (See paragraph (a)(6) of this 
section.)
    (ii) The amount in dispute is less than $300. (See paragraph (a)(7) 
of this section.)
    (iii) Appeal rights have been offered but a request for hearing is 
not received by OCHAMPUS within 60 days of the date of the notice of the 
formal review determination.
    (d) Hearing. Any party to the initial determination may request a 
hearing if the party is dissatisfied with the formal review 
determination and the formal review determination is not final under the 
provisions of paragraph (c)(5), of this section, or the initial 
determination involves the sanctioning of a provider under Sec. 199.9 
of this part and involves an appealable issue.
    (1) Requesting a hearing--(i) Written request required. The request 
shall be in writing, state the specific matter in dispute, include a 
copy of the appropriate initial determination or formal review 
determination being appealed, and include any additional information or 
documents not submitted previously.
    (ii) Where to file. The request shall be submitted to the Chief, 
Appeals and Hearings, OCHAMPUS, Aurora, Colorado 80045-6900.
    (iii) Allowed time to file. The request shall be mailed within 60 
days after the date of the notice of the initial determination or formal 
review determination being appealed.
    (iv) Official filing date. A request for hearing shall be deemed 
filed on the date it is mailed and postmarked. If a request for hearing 
does not have a postmark, it shall be deemed filed on the day received 
by OCHAMPUS.
    (2) Hearing process. A hearing is an administrative proceeding in 
which facts relevant to the appealable issue(s) in the case are 
presented and evaluated in relation to applicable law, regulation, 
policies, and guidelines in effect at the time the care in dispute was 
provided or requested; at the time of the initial determination, formal 
review determination, or hearing decision involving a provider request 
for approval under CHAMPUS as an authorized provider; or at the time of 
the act or event which is the basis for the imposition of sanctions 
under this part. A hearing, except for an appeal involving a provider 
sanction, generally shall be conducted as a nonadversary, administrative 
proceeding. However, an authorized party to any hearing, including 
CHAMPUS, may submit additional evidence or testimony relevant to the 
appealable issue(s) and may appoint a representative, including legal 
counsel, to participate in the hearing process.
    (3) Timeliness of hearing. (i) Except as otherwise provided in this 
section, within 60 days following receipt of a request for hearing, the 
Director, OCHAMPUS, or a designee, normally will appoint a hearing 
officer to hear the appeal. Copies of all records in the possession of 
OCHAMPUS that are pertinent to the matter to be heard or that formed the 
basis of the formal review determination shall be provided to the 
hearing officer and, upon request, to the appealing party.
    (ii) The hearing officer, except as otherwise provided in this 
Section, normally shall have 60 days from the date of written notice of 
assignment to review the file, schedule and hold the hearing, and issue 
a recommended decision to the Director, OCHAMPUS, or designee.

[[Page 230]]

    (iii) The Director, OCHAMPUS, or designee, may delay the case 
assignment to the hearing officer if additional information is needed 
that cannot be obtained and included in the record within the time 
period specified above. The appealing party will be notified in writing 
of the delay resulting from the request for additional information. The 
Director, OCHAMPUS, or a designee, in such circumstances, will assign 
the case to a hearing officer within 30 days of receipt of all such 
additional information, or within 60 days of receipt of the request for 
hearing, whichever shall occur last.
    (iv) The hearing officer may delay submitting the recommended 
decision if, at the close of the hearing, any party to the hearing 
requests that the record remain open for submission of additional 
information. In such circumstances, the hearing officer will have 30 
days following receipt of all such additional information including 
comments from the other parties to the hearing concerning the additional 
information to submit the recommended decision to the Director, 
OCHAMPUS, or a designee.
    (4) Representation at a hearing. Any party to the hearing may 
appoint a representative to act on behalf of the party at the hearing, 
unless such person currently is disqualified or suspended from acting in 
another Federal administrative proceeding, or unless otherwise 
prohibited by law, this part, or any other DoD regulation (see paragraph 
(a)(2)(ii) of this section). A hearing officer may refuse to allow any 
person to represent a party at the hearing when such person engages in 
unethical, disruptive, or contemptuous conduct, or intentionally fails 
to comply with proper instructions or requests of the hearing officer, 
or the provisions of this part. The representative shall have the same 
authority as the appealing party and notice given to the representative 
shall constitute notice required to be given to the appealing party.
    (5) Consolidation of proceedings. The Director, OCHAMPUS, or a 
designee, may consolidate any number of proceedings for hearing when the 
facts and circumstances are similar and no substantial right of an 
appealing party will be prejudiced.
    (6) Authority of the hearing officer. The hearing officer in 
exercising the authority to conduct a hearing under this part will be 
bound by 10 U.S.C. chapter 55 and this part. The hearing officer in 
addressing substantive, appealable issues shall be bound by policy 
manuals, instructions, procedures, and other guidelines issued by the 
ASD(HA), or a designee, or by the Director, OCHAMPUS, or a designee, in 
effect for the period in which the matter in dispute arose. A hearing 
officer may not establish or amend policy, procedures, instructions, or 
guidelines. However, the hearing officer may recommend reconsideration 
of the policy, procedures, instructions or guidelines by the ASD(HA), or 
a designee, when the final decision is issued in the case.
    (7) Disqualification of hearing officer. A hearing officer 
voluntarily shall disqualify himself or herself and withdraw from any 
proceeding in which the hearing officer cannot give fair or impartial 
hearing, or in which there is a conflict of interest. A party to the 
hearing may request the disqualification of a hearing officer by filing 
a statement detailing the reasons the party believes that a fair and 
impartial hearing cannot be given or that a conflict of interest exists. 
Such request immediately shall be sent by the appealing party or the 
hearing officer to the Director, OCHAMPUS, or a designee, who shall 
investigate the allegations and advise the complaining party of the 
decision in writing. A copy of such decision also shall be mailed to all 
other parties to the hearing. If the Director, OCHAMPUS, or a designee, 
reassigns the case to another hearing officer, no investigation shall be 
required.
    (8) Notice and scheduling of hearing. The hearing officer shall 
issue by certified mail, when practicable, a written notice to the 
parties to the hearing of the time and place for the hearing. Such 
notice shall be mailed at least 15 days before the scheduled date of the 
hearing. The notice shall contain sufficient information about the 
hearing procedure, including the party's right to representation, to 
allow for effective preparation. The notice also shall advise the 
appealing party of the right to

[[Page 231]]

request a copy of the record before the hearing. Additionally, the 
notice shall advise the appealing party of his or her responsibility to 
furnish the hearing officer, no later than 7 days before the scheduled 
date of the hearing, a list of all witnesses who will testify and a copy 
of all additional information to be presented at the hearing. The time 
and place of the hearing shall be determined by the hearing officer, who 
shall select a reasonable time and location mutually convenient to the 
appealing party and OCHAMPUS.
    (9) Dismissal of request for hearing. (i) By application of 
appealing party. A request for hearing may be dismissed by the Director, 
OCHAMPUS, or a designee, at any time before the mailing of the final 
decision, upon the application of the appealing party. A request for 
dismissal must be in writing and filed with the Chief, Appeals and 
Hearings, OCHAMPUS, or the hearing officer. When dismissal is requested, 
the formal review determination in the case shall be deemed final, 
unless the dismissal is vacated in accordance with paragraph (d)(9)(v) 
of this section.
    (ii) By stipulation of the parties to the hearing. A request for a 
hearing may be dismissed by the Director, OCHAMPUS, or a designee, at 
any time before to the mailing of notice of the final decision under a 
stipulation agreement between the appealing party and OCHAMPUS. When 
dismissal is entered under a stipulation, the formal review decision 
shall be deemed final, unless the dismissal is vacated in accordance 
with paragraph (d)(9)(v) of this section.
    (iii) By abandonment. The Director, OCHAMPUS, or a designee, may 
dismiss a request for hearing upon abandonment by the appealing party.
    (A) An appealing party shall be deemed to have abandoned a request 
for hearing, other than when personal appearance is waived in accordance 
with Sec. 199.10(d)(11)(xii), if neither the appealing party nor an 
appointed representative appears at the time and place fixed for the 
hearing and if, within 10 days after the mailing of a notice by 
certified mail to the appealing party by the hearing officer to show 
cause, such party does not show good and sufficient cause for such 
failure to appear and failure to notify the hearing officer before the 
time fixed for hearing that an appearance could not be made.
    (B) An appealing party shall be deemed to have abandoned a request 
for hearing if, before assignment of the case to the hearing officer, 
OCHAMPUS is unable to locate either the appealing party or an appointed 
representative.
    (C) An appealing party shall be deemed to have abandoned a request 
for hearing if the appealing party fails to prosecute the appeal. 
Failure to prosecute the appeal includes, but is not limited to, an 
appealing party's failure to provide information reasonably requested by 
OCHAMPUS or the hearing officer for consideration in the appeal.
    (D) If the Director, OCHAMPUS, or a designee, dismisses the request 
for hearing because of abandonment, the formal review determination in 
the case shall be deemed to be final, unless the dismissal is vacated in 
accordance with paragraph (d)(9)(v) of this section.
    (iv) For cause. The Director, OCHAMPUS, or a designee, may dismiss 
for cause a request for hearing either entirely or as to any stated 
issue. If the Director, OCHAMPUS, or a designee, dismisses a hearing 
request for cause, the formal review determination in the case shall be 
deemed to be final, unless the dismissal is vacated in accordance with 
paragraph (d)(9)(v) of this section. A dismissal for cause may be issued 
under any of the following circumstances:
    (A) When the appealing party requesting the hearing is not a proper 
party under paragraph (a)(2)(i) of this section, or does not otherwise 
have a right to participate in a hearing.
    (B) When the appealing party who filed the hearing request dies, and 
there is no information before the Director, OCHAMPUS, or a designee, 
showing that a party to the initial determination who is not an 
appealing party may be prejudiced by the formal review determination.
    (C) When the issue is not appealable (see Sec. 199.10(a)(6)).
    (D) When the amount in dispute is less than $300 (see Sec. 
199.10(a)(7)).

[[Page 232]]

    (E) When all appealable issues have been resolved in favor of the 
appealing party.
    (v) Vacation of dismissal. Dismissal of a request for hearing may be 
vacated by the Director, OCHAMPUS, or a designee, upon written request 
of the appealing party, if the request is received within 6 months of 
the date of the notice of dismissal mailed to the last known address of 
the party requesting the hearing.
    (10) Preparation for hearing. (i) Prehearing statement of 
contentions. The hearing officer may on reasonable notice require a 
party to the hearing to submit a written statement of contentions and 
reasons. The written statement shall be provided to all parties to the 
hearing before the hearing takes place.
    (ii) Discovery. Upon the written request of a party to the initial 
determination (including OCHAMPUS) and for good cause shown, the hearing 
officer will allow that party to inspect and copy all documents, unless 
privileged, relevant to issues in the proceeding that are in the 
possession or control of the other party participating in the appeal. 
The written request shall state clearly what information and documents 
are required for inspection and the relevance of the documents to the 
issues in the proceeding. Depositions, interrogatories, requests for 
admissions, and other forms of prehearing discovery are generally not 
authorized and the Department of Defense does not have subpoena 
authority for purposes of administrative hearings under this Section. If 
the hearing officer finds that good cause exists for taking a deposition 
or interrogatory, the expense shall be assessed to the requesting party, 
with copies furnished to the hearing officer and the other party or 
parties to the hearing.
    (iii) Witnesses and evidence. All parties to a hearing are 
responsible for producing, at each party's expense, meaning without 
reimbursement of payment by CHAMPUS, witnesses and other evidence in 
their own behalf, and for furnishing copies of any such documentary 
evidence to the hearing officer and other party or parties to the 
hearing. The Department of Defense is not authorized to subpoena 
witnesses or records. The hearing officer may issue invitations and 
requests to individuals to appear and testify without cost to the 
Government, so that the full facts in the case may be presented.
    (11) Conduct of hearing. (i) Right to open hearing. Because of the 
personal nature of the matters to be considered, hearings normally shall 
be closed to the public. However, the appealing party may request an 
open hearing. If this occurs, the hearing shall be open except when 
protection of other legitimate Government purposes dictates closing 
certain portions of the hearing.
    (ii) Right to examine parties to the hearing and their witnesses. 
Each party to the hearing shall have the right to produce and examine 
witnesses, to introduce exhibits, to question opposing witnesses on any 
matter relevant to the issue even though the matter was not covered in 
the direct examination, to impeach any witness regardless of which party 
to the hearing first called the witness to testify, and to rebut any 
evidence presented. Except for those witnesses employed by OCHAMPUS at 
the time of the hearing, or records in the possession of OCHAMPUS, a 
party to a hearing shall be responsible, that is to say no payment or 
reimbursement shall be made by CHAMPUS for the cost or fee associated 
with producing witnesses or other evidence in the party's own behalf, or 
for furnishing copies of documentary evidence to the hearing officer and 
other party or parties to the hearing.
    (iii) Taking of evidence. The hearing officer shall control the 
taking of evidence in a manner best suited ascertain the facts and 
safeguard the rights of the parties to the hearing. Before taking 
evidence, the hearing officer shall identify and state the issues in 
dispute on the record and the order in which evidence will be received.
    (iv) Questioning and admission of evidence. A hearing officer may 
question any witness and shall admit any relevant evidence. Evidence 
that is irrelevant or unduly repetitious shall be excluded.
    (v) Relevant evidence. Any relevant evidence shall be admitted, 
unless unduly repetitious, if it is the type of evidence on which 
responsible persons are accustomed to rely in the conduct of

[[Page 233]]

serious affairs, regardless of the existence of any common law or 
statutory rule that might make improper the admission of such evidence 
over objection in civil or criminal actions.
    (vi) CHAMPUS determination first. The basis of the CHAMPUS 
determinations shall be presented to the hearing officer first. The 
appealing party shall then be given the opportunity to establish 
affirmatively why this determination is held to be in error.
    (vii) Testimony. Testimony shall be taken only on oath, affirmation, 
or penalty of perjury.
    (viii) Oral argument and briefs. At the request of any party to the 
hearing made before the close of the hearing, the hearing officer shall 
grant oral argument. If written argument is requested, it shall be 
granted, and the parties to the hearing shall be advised as to the time 
and manner within which such argument is to be filed. The hearing 
officer may require any party to the hearing to submit written memoranda 
pertaining to any or all issues raised in the hearing.
    (ix) Continuance of hearing. A hearing officer may continue a 
hearing to another time or place on his or her own motion or, upon 
showing of good cause, at the request of any party. Written notice of 
the time and place of the continued hearing, except as otherwise 
provided here, shall be in accordance with this part. When a continuance 
is ordered during a hearing, oral notice of the time and place of the 
continued hearing may be given to each party to the hearing who is 
present at the hearing.
    (x) Continuance for additional evidence. If the hearing officer 
determines, after a hearing has begun, that additional evidence is 
necessary for the proper determination of the case, the following 
procedures may be invoked:
    (A) Continue hearing. The hearing may be continued to a later date 
in accordance with Sec. 199.10(d)(11)(ix), above.
    (B) Closed hearing. The hearing may be closed, but the record held 
open in order to permit the introduction of additional evidence. Any 
evidence submitted after the close of the hearing shall be made 
available to all parties to the hearing, and all parties to the hearing 
shall have the opportunity for comment. The hearing officer may reopen 
the hearing if any portion of the additional evidence makes further 
hearing desirable. Notice thereof shall be given in accordance with 
paragraph (d)(8) of this section.
    (xi) Transcript of hearing. A verbatim taped record of the hearing 
shall be made and shall become a permanent part of the record. Upon 
request, the appealing party shall be furnished a duplicate copy of the 
tape. A typed transcript of the testimony will be made only when 
determined to be necessary by OCHAMPUS. If a typed transcript is made, 
the appealing party shall be furnished a copy without charge. 
Corrections shall be allowed in the typed transcript by the hearing 
officer solely for the purpose of conforming the transcript to the 
actual testimony.
    (xii) Waiver of right to appear and present evidence. If all parties 
waive their right to appear before the hearing officer for presenting 
evidence and contentions personally or by representation, it will not be 
necessary for the hearing officer to give notice of, or to conduct a 
formal hearing. A waiver of the right to appear must be in writing and 
filed with the hearing officer or the Chief, Appeals and Hearings, 
OCHAMPUS. Such waiver may be withdrawn by the party by written notice 
received by the hearing officer or Chief, Appeals and Hearings, no later 
than 7 days before the scheduled hearing or the mailing of notice of the 
final decision, whichever occurs first. For purposes of this Section, 
failure of a party to appear personally or by representation after 
filing written notice of waiver, will not be cause for finding of 
abandonment and the hearing officer shall make the recommended decision 
on the basis of all evidence of record.
    (12) Recommended decision. At the conclusion of the hearing and 
after the record has been closed, the matter shall be taken under 
consideration by the hearing officer. Within the time frames previously 
set forth in this Section, the hearing officer shall submit to the 
Director, OCHAMPUS, or a designee, a written recommended decision 
containing a statement of findings and a statement of reasons based on 
the evidence adduced at the hearing and

[[Page 234]]

otherwise included in the hearing record.
    (i) Statement of findings. A statement of findings is a clear and 
concise statement of fact evidenced in the record or conclusions that 
readily can be deduced from the evidence of record. Each finding must be 
supported by substantial evidence that is defined as such evidence as a 
reasonable mind can accept as adequate to support a conclusion.
    (ii) Statement of reasons. A reason is a clear and concise statement 
of law, regulation, policies, or guidelines relating to the statement of 
findings that provides the basis for the recommended decision.
    (e) Final decision. (1) Director, OCHAMPUS. The recommended decision 
shall be reviewed by the Director, OCHAMPUS, or a designee, who shall 
adopt or reject the recommended decision or refer the recommended 
decision for review by the Assistant Secretary of Defense (Health 
Affairs). The Director, OCHAMPUS, or designee, normally will take action 
with regard to the recommended decision within 90 days of receipt of the 
recommended decision or receipt of the revised recommended decision 
following a remand order to the Hearing Officer.
    (i) Final action. If the Director, OCHAMPUS, or a designee, concurs 
in the recommended decision, no further agency action is required and 
the recommended decision, as adopted by the Director, OCHAMPUS, is the 
final agency decision in the appeal. In the case of rejection, the 
Director, OCHAMPUS, or a designee, shall state the reason for 
disagreement with the recommended decision and the underlying facts 
supporting such disagreement. In these circumstances, the Director, 
OCHAMPUS, or a designee, may have a final decision prepared based on the 
record, or may remand the matter to the Hearing Officer for appropriate 
action. In the latter instance, the Hearing Officer shall take 
appropriate action and submit a new recommended decision within 60 days 
of receipt of the remand order. The decision by the Director, OCHAMPUS, 
or a designee, concerning a case arising under the procedures of this 
section, shall be the final agency decision and the final decision shall 
be sent by certified mail to the appealing party or parties. A final 
agency decision under paragraph (e)(1) of this section will not be 
relied on, used, or cited as precedent by the Department of Defense in 
the administration of CHAMPUS.
    (ii) Referral for review by ASD(HA). The Director, OCHAMPUS, or a 
designee, may refer a hearing case to the Assistant Secretary of Defense 
(Health Affairs) when the hearing involves the resolution of CHAMPUS 
policy and issuance of a final decision which may be relied on, used, or 
cited as precedent in the administration of CHAMPUS. In such a 
circumstance, the Director, OCHAMPUS, or a designee, shall forward the 
recommended decision, together with the recommendation of the Director, 
OCHAMPUS, or a designee, regarding disposition of the hearing case.
    (2) ASD(HA). The ASD(HA), or a designee, after reviewing a case 
arising under the procedures of this section may issue a final decision 
based on the record in the hearing case or remand the case to the 
Director, OCHAMPUS, or a designee, for appropriate action. A decision 
issued by the ASD(HA), or a designee, shall be the final agency decision 
in the appeal and a copy of the final decision shall be sent by 
certified mail to the appealing party or parties. A final decision of 
the ASD(HA), or a designee, issued under this paragraph (e)(2) may be 
relied on, used, or cited as precedent in the administration of CHAMPUS.

[51 FR 24008, July 1, 1986, as amended at 52 FR 33007, Sept. 1, 1987; 54 
FR 25255, June 14, 1989; 55 FR 43341, Nov. 16, 1990; 56 FR 59880, Nov. 
26, 1991; 66 FR 40607, Aug. 3, 2001; 68 FR 11973, Mar. 13, 2003; 68 FR 
23033, Apr. 30, 2003; 68 FR 32362, May 30, 2003; 69 FR 6920, Feb. 12, 
2004]



Sec. 199.11  Overpayments recovery.

    (a) General. Actions to recover overpayments arise when the 
government has a right to recover money or property from an individual, 
partnership, association, corporation, governmental body or other legal 
entity, foreign or domestic, except an instrumentality of the United 
States because of an erroneous payment of benefits under the Civilian 
Health and Medical Program

[[Page 235]]

of the Uniformed Services (CHAMPUS). A claim against several joint 
debtors arising from a single incident or transaction is considered to 
be one claim. It is the purpose of this Section to prescribe procedures 
for investigation, determination, assertion, collection, compromise, 
waiver and termination of claims in favor of the United States for 
erroneous benefits payments arising out of administration of CHAMPUS.
    (b) Authority. (1) Federal statutory authority. The Federal Claims 
Collection Act provides the basic authority under which claims may be 
asserted pursuant to this section. It is implemented by joint 
regulations issued by the Department of Justice and the General 
Accounting Office, 4 CFR parts 101-105. Thereunder, the heads of federal 
agencies or their designees are required to attempt collection of all 
claims of the United States for money or property arising out of the 
activities of their respective agencies. These officials may, with 
respect to claims that do not exceed $20,000, exclusive of interest, and 
in conformity with the standards promulgated in the joint regulations, 
compromise, suspend, or terminate collection action on such claims. 
Section 743 of the National Defense Authorization Act for Fiscal Year 
1996 (Public Law 104-106) authorizes the waiver (see paragraph (g)(3) of 
this section) of collection of overpayments otherwise due from a person 
after the termination of the person's CHAMPUS eligibility, because the 
person became eligible for Medicare Part A by reason of disability or 
end-stage renal disease.
    (2) Other authority. Occasionally, federal claims may arise which 
are grounded, at least in part, in authority other than the federal 
statute referenced above. These include, but are not limited to, claims 
arising under:
    (i) State worker's compensation laws.
    (ii) State hospital lien laws.
    (iii) State no-fault automobile statutes.
    (iv) Contract rights under terms of insurance policies.
    (c) Policy. The governmental policy of avoiding unnecessary 
litigation in the collection of claims by the United States for money or 
property necessitates aggressive agency collection action. The Director, 
OCHAMPUS, or a designee, will insure that CHAMPUS claims asserting 
personnel are adequately supported to take timely and effective action. 
Claims arising out of any incident which has or probably will generate a 
claim in favor of the government will not be compromised nor will 
collection action be terminated by any person not authorized to take 
final action on the government's claim. By the Act of July 18, 1966 (28 
U.S.C. 2415-2418), Congress established a statute of limitation 
applicable to the government in areas where previously neither 
limitations nor laches were available as a defense. Claims falling 
within the provisions of this statute will be processed expeditiously to 
the Department of Justice or the General Accounting Office, as 
appropriate, without attempting administrative collection action if such 
action cannot be accomplished in sufficient time to preclude the running 
of the statute of limitations.
    (d) Appealability. This section describes the procedures to be 
followed in the recovery and collection of federal claims in favor of 
the United States arising from the operation of the CHAMPUS. Actions 
taken under this section are not initial determinations for the purpose 
of the appeal procedures of Sec. 199.10 of this part. However, the 
proper exercise of the right to appeal benefit or provider status 
determinations under the procedures set forth in Sec. 199.10 may affect 
the processing of federal claims arising under this section. Those 
appeal procedures afford a CHAMPUS beneficiary or participating provider 
an opportunity for administrative appellate review in cases in which 
benefits have been denied and in which there is a significant factual 
dispute. For example, a fiscal intermediary may erroneously make payment 
for services which are excluded as CHAMPUS benefits because they are 
determined to be not medically necessary. In that event recoupment 
action will be initiated by the fiscal intermediary at the same time the 
fiscal intermediary will offer an administrative appeal as provided in 
Sec. 199.10 of this part on the medical necessity issue raised by the 
adverse benefit determination. The recoupment action and the 
administrative appeal are

[[Page 236]]

separate actions. However, in an appropriate case, the pendency of the 
appeal may provide a basis for the suspension of collection in the 
recoupment. Obviously, if the appeal is resolved entirely in favor of 
the appealing party, that would provide a basis for the termination of 
collection action in the recoupment case.
    (e) Delegation. Subject to the limitations imposed by law or 
contained in this section, the authority to assert, settle, compromise 
or to suspend or terminate collection action on claims arising under the 
Federal Claims Collection Act has been delegated to the Director, 
OCHAMPUS, or a designee.
    (f) Recoupment of erroneous payments. (1) Erroneous payments. 
Erroneous payments are expenditures of government funds which are not 
authorized by law or this part. Examples which are sometimes encountered 
in the administration of the CHAMPUS include mathematical errors, 
payment for care provided to an ineligible person, payment for care 
which is not an authorized benefit, payment for duplicate claims, 
inaccurate application of the deductible or co-payment, or payment for 
services which were not medically necessary. Claims in favor of the 
government arising as the result of the filing of false CHAMPUS claims 
or other fraud fall under the direct cognizance of the Department of 
Justice. Consequently, the procedures in this section apply to such 
claims only when specifically authorized or directed by the Department 
of Justice. (See 32 CFR 101.3.)
    (2) Scope. (i) General. Paragraph (f) of this section and the 
paragraphs following contain requirements and procedures for the 
assertion, collection or compromise of, and the suspension or 
termination of collection action on claims for erroneous payments 
against a sponsor, beneficiary, provider, physician or other supplier of 
services under the CHAMPUS. These provisions are adopted pursuant to the 
Federal Claims Collection Act (31 U.S.C. 3701 et seq., as amended by the 
Debt Collection Act of 1982, Pub. L. 97-365), which requires each agency 
of the U.S. Government (pursuant to regulations jointly promulgated by 
the Attorney General and the Comptroller General) to attempt collection 
of federal claims in favor of the United States arising out of the 
activities of the agency, and 5 U.S.C. 5514, which provides for 
installment deduction for indebtedness to the United States, implemented 
by regulations issued by the Office of Personnel Management, 5 CFR part 
550, and the Department of Defense, 32 CFR part 90. Paragraph (f) of 
this section also includes government-wide collections by salary offset 
under 5 U.S.C. 5514.
    (ii) Debtor defined. As used herein, ``debtor'' means a sponsor, 
beneficiary, provider, physician, other supplier of services or 
supplies, or any other person who has for any reason been erroneously 
paid under the CHAMPUS. It includes an individual, partnership, 
corporation, professional corporation or association, estate, trust or 
any other legal entity.
    (iii) Delinquency defined. As used herein, a debt is considered 
``delinquent'' if it has not been paid by the date specified in the 
initial demand for payment (that is, the initial written notification) 
or applicable contractual agreement, unless other satisfactory payment 
arrangements have been made by that date. A debt is also considered 
delinquent if at any time after entering into a repayment agreement, the 
debtor fails to satisfy any obligations under that agreement.
    (3) Other health insurance claims. Claims arising from erroneous 
CHAMPUS payments in situations where the beneficiary has entitlement to 
insurance, medical service, health and medical plan, or other government 
program, except in the case of a plan administered under Title XIX of 
the Social Security Act (42 U.S.C. 1396 et seq.), through employment, by 
law, through membership in an organization, or as a student, or through 
the purchase of a private insurance or health plan, shall be recouped 
under one of the following procedures:
    (i) Where the other health insurance plan has not already made 
benefit payments to the beneficiary or provider, a claim for direct 
reimbursement will be asserted against the plan, pursuant to the fiscal 
intermediary's coordination of benefit procedures.
    (ii) If the other health insurance plan has made its benefit payment 
prior to

[[Page 237]]

receiving the CHAMPUS request for reimbursement, the recoupment 
procedures set forth in paragraph (f) of this section will be followed.
    (4) Claims denials due to clarification or change. In those 
instances where claim review results in the denial of benefits 
previously provided but now denied due to a change, clarification or 
interpretation of the public law or this part, no recoupment action need 
be taken to recover funds expended prior to the effective date of such 
change, clarification, or interpretation.
    (5) Good faith payment. (i) The Department of Defense, through the 
Defense Enrollment Eligibility Reporting System (DEERS), is responsible 
for establishing and maintaining a file listing persons eligible to 
receive benefits under CHAMPUS. However, it is the responsibility of the 
Uniformed Services to provide eligible CHAMPUS beneficiaries with 
accurate and appropriate means of identification. When sources of 
civilian medical care exercise reasonable care and precaution in 
identifying persons claiming to be eligible CHAMPUS beneficiaries and 
furnish otherwise covered services and supplies to such persons in good 
faith, CHAMPUS benefits may be paid subject to prior approval by the 
Director, OCHAMPUS, or a designee, notwithstanding the fact that the 
person receiving the services and supplies is subsequently determined to 
be ineligible for benefits. Good faith payments will not be authorized 
for services and supplies provided by a civilian source of medical care 
as the result of its own careless identification procedures.
    (ii) When it is determined that a person was not a CHAMPUS 
beneficiary, the CHAMPUS fiscal intermediary and the civilian source of 
medical care are expected to make all reasonable efforts to obtain 
payment or recoup the amount of the good faith payment from the person 
who erroneously claimed to be a CHAMPUS beneficiary. Recoupments of good 
faith payments initiated by the CHAMPUS fiscal intermediary will be 
processed pursuant to the provisions of paragraph (f) of this section.
    (6) Recoupment procedures. (i) Initial action. When an erroneous 
payment is discovered, the CHAMPUS fiscal intermediary normally will be 
required to take the initial action to effect recoupment. Such action 
will be in accordance with the provisions of this part and the fiscal 
intermediary's CHAMPUS contract and will include demands for refund or 
an offset against any other CHAMPUS payment becoming due the debtor. 
When the efforts of the CHAMPUS fiscal intermediary to effect recoupment 
are not successful within a reasonable time, recoupment cases will be 
referred to the General Counsel, OCHAMPUS, for further action in 
accordance with the provisions of paragraph (f) of this section. All 
requests to debtors for refund or notices of intent to offset shall be 
in writing.
    (ii) Demand for payment. The CHAMPUS fiscal intermediary and 
OCHAMPUS normally shall make a total of at least three progressively 
stronger written demands upon the debtor in terms which inform the 
debtor of the consequences of his or her failure to cooperate. The 
initial written demand shall inform the debtor of the basis for and the 
amount of the indebtedness. The initial written demand shall also inform 
the debtor of the following: The debtor's right to inspect and copy all 
records pertaining to the debt; his or her right to request an 
administrative review by the fiscal intermediary; that interest on the 
debt at the current rate as determined by the Director, OCHAMPUS, or a 
designee, will begin to accrue on the date of the initial demand 
notification; that such interest shall be waived on the debt, or any 
portion thereof, which is paid within 30 days of the date of the initial 
demand notification; that payment of the indebtedness is due within 30 
days of the date of the initial demand notification; and that 
administrative costs and penalties will be charged pursuant to 4 CFR 
102.13. The debtor also shall be informed that collection by offset 
against current or subsequent claims may be taken. All debtors will be 
offered an opportunity to enter into a written agreement to repay the 
indebtedness. The fiscal intermediary demand letters must be dated the 
same day as they are mailed. Two written demands, at 30-day intervals, 
normally will be made by the CHAMPUS fiscal intermediary unless a 
response to the

[[Page 238]]

first demand indicates that further demand would be futile or unless 
prompt suit or attachment is required in anticipation of the departure 
of the debtor, of his removal or transfer of assets, or the running of 
the statute of limitations. There should be no undue time lag in 
responding to any communication received from the debtor. Responses 
should be made within 30 days whenever feasible. If these initial 
efforts at collection are not productive or if immediate legal action on 
the claim appears necessary, the claim either will be referred promptly 
by the CHAMPUS fiscal intermediary to the General Counsel, OCHAMPUS, or 
the CHAMPUS fiscal intermediary will prepare a final notice informing 
the debtor that the debt is to be offset in whole or in part. When a 
case is referred to OCHAMPUS, the Office of General Counsel will 
normally prepare a third written demand unless from the record such 
demand appears futile or otherwise inappropriate.
    (iii) Collection by administrative offset. Collections by offset 
will be undertaken administratively on claims which are liquidated or 
certain in amount in every instance in which this is feasible. No 
collection by offset may be undertaken unless a demand for payment 
containing all of the procedural safeguards described in paragraph 
(f)(6)(ii) of this section, has been sent to the debtor. The 
determinations of indebtedness made for recoupment of erroneous CHAMPUS 
payments rarely involve issues of credibility of veracity. Erroneous 
CHAMPUS payments most frequently arise from claims submitted by 
individuals ineligible for CHAMPUS benefits; from claims submitted for 
services or supplies not covered by CHAMPUS; from claims in which there 
have been other insurance payments which reduce the CHAMPUS liability 
and from claims from participating providers in which payment is 
initially erroneously made to the beneficiary. While these recoupment 
claims normally involve the resolution of factual questions, these 
resolution nearly always require only reference to the documentary 
evidence compiled in the investigation and processing of the claim. The 
appeals system described in Sec. 199.10 of this part affords a CHAMPUS 
beneficiary or participating provider an opportunity for an 
administrative appellate review, including, under certain circumstances, 
the right to oral hearing before a hearing officer. Further, there is no 
statutory provision for the waiver of indebtedness arising from 
erroneous CHAMPUS payments, other than the provisions of the Federal 
Claims Collection Act which allow for the compromise of claims or the 
termination of collection action under certain circumstances specified 
in paragraph (g) of this section. Consequently, the pre-offset oral 
hearing requirements of the Federal Claims Collection Standards (4 CFR 
102.3) do not apply to the recoupment of erroneous CHAMPUS payments. 
CHAMPUS fiscal intermediaries may take administrative action to offset 
erroneous payments against other current CHAMPUS payments owing a 
debtor. Payments on the claims of a debtor pending at or filed 
subsequent to the time collection action is initiated should be 
suspended pending the outcome of the collection action so that these 
funds will be available for offset. All or any part of a debt may be 
offset depending upon the amount available for offset. Only the case in 
which no possibility of offset arises within 60 days of the initiation 
of collection action and on which other collection efforts have been 
unsuccessful or in which the debtor seeks relief from the indebtedness 
will be referred to the General Counsel, OCHAMPUS, by the CHAMPUS fiscal 
intermediary. Offset, under the provisions of 31 U.S.C. 3716, is not to 
be used with respect to debts owed by any state or local government. Any 
requests for offset that are received from other agencies shall be 
forwarded to the General Counsel, OCHAMPUS, for processing, as will 
orders for garnishment issued by courts of competent jurisdiction.
    (iv) Collection of installments. CHAMPUS recoupment claims should be 
collected in one lump sum whenever possible. However, if the debtor is 
financially unable to pay the debt in one lump sum, payment may be 
accepted in regular installments by the CHAMPUS fiscal intermediary or 
the General Counsel, OCHAMPUS. Installment payments normally will be 
required on at

[[Page 239]]

least a monthly basis and their size will bear a reasonable relation to 
the size of the debt and the debtor's ability to pay. A CHAMPUS fiscal 
intermediary should not enter into installment agreements which extend 
beyond 24 months. OCHAMPUS installment agreements normally should 
liquidate the government's claim within 3 years. Installment payments of 
less than $50 per month normally will be accepted only if justifiable on 
grounds of financial hardship or some other reasonable cause. Any 
installment agreement with a debtor in which the total amount of the 
deferred installments will exceed $750 should normally include an 
executed promissory note.
    (v) Interest, penalties, and administrative costs. Interest shall be 
charged on CHAMPUS recoupment debts and debts collected in installments 
in accordance with 4 CFR 102.13 and instructions issued by the Director, 
OCHAMPUS, or a designee. Interest shall accrue from the date on which 
the initial demand is mailed to the debtor. The rate of interest 
assessed shall be the rate of the current value of funds to the United 
States Treasury (that is, the Treasury tax and loan account rate). The 
rate of interest, as initially assessed shall remain fixed for the 
duration of the indebtedness, except that where the debtor has defaulted 
on a repayment agreement and seeks to enter into a new agreement, a new 
interest rate may be set which reflects the current value of funds to 
the Treasury at the time the new agreement is executed. The collection 
of interest on the debt or any portion of the debt, which is paid within 
30 days after the date on which interest began to accrue, shall be 
waived. The agency may extend this 30-day period, on a case-by-case 
basis, if it reasonably determines that such action is appropriate. 
Also, the collection of interest, penalties, and administrative costs 
may be waived in whole or in part as a part of the compromise of a debt 
as provided in paragraph (g) of this section. In addition, the Director, 
OCHAMPUS, or a designee, may waive in whole or in part, the collection 
of interest, penalties, or administrative costs assessed herein, if he 
or she determines that collection of these charges would be against 
equity and good conscience or not in the best interests of the United 
States. Some situations in which such a waiver may be appropriate 
include:
    (A) Waiver of interest consistent with 4 CFR 104.2(c)(2) in 
connection with a suspension of collection action pending a CHAMPUS 
appeal under Sec. 199.10 of this part where there is a substantial 
issue of fact in dispute.
    (B) Waiver of interest where the original debt arose through no 
fault or lack of good faith on the part of the debtor and the collection 
of interest would impose a financial hardship or burden on the debtor. 
Some examples in which such a waiver may be appropriate include: a debt 
arising when a CHAMPUS beneficiary, who is unaware of the loss of 
eligibility for CHAMPUS because he or she has become eligible for 
Medicare, continues to file and be paid for CHAMPUS claims, resulting in 
erroneous CHAMPUS payments; a debt arising when a CHAMPUS beneficiary in 
good faith files and is paid a CHAMPUS claim for medical services or 
supplies which are later determined not to be benefits of CHAMPUS; and a 
debt arising when a CHAMPUS beneficiary is overpaid as the result of a 
calculation error on the part of a fiscal intermediary or OCHAMPUS.
    (C) Waiver of interest where there has been an agreement to repay a 
debt in installments, there is no indication of fault or lack of good 
faith on the part of the debtor, and the amount of interest is so large 
in relation to the size of the installments that the debtor can 
reasonably afford to pay, that it is likely the debt will never be 
repaid in full.

When a debt is paid in installments, the installment payments first will 
be applied to the payment of outstanding penalty and administrative cost 
charges, second to accrued interest and then to principal. 
Administrative costs incurred as the result of a debt becoming 
delinquent (as defined in paragraph (f)(2)(iii) of this section) shall 
be assessed against a debtor. These administrative costs represent the 
additional costs incurred in processing and handling the debt because it 
became delinquent. The calculation of administrative costs should be 
based upon cost

[[Page 240]]

analysis establishing an average of actual additional costs incurred in 
processing and handling claims against other debtors in similar stages 
of delinquency. A penalty charge, not exceeding six percent a year shall 
be assessed on any portion of a debt that is delinquent for more than 90 
days. This charge, which need not be calculated until the 91st day of 
delinquency, shall accrue from the date that the debt became delinquent.
    (vi) Referral to other federal agencies for administrative offset. 
As appropriate and in accordance with 4 CFR part 1023, agencies will be 
requested to initiate administrative offset to collect CHAMPUS debts. 
When a debtor is employed by the U.S. Government, or is a member or 
retired member of the Uniformed Service, and collection by offset 
against other CHAMPUS payments due the debtor cannot be accomplished, 
and there have been no positive responses to a demand for payment within 
60 days, the Director, OCHAMPUS, or a designee, may contact the agency 
holding funds payable to the debtor for payment by allotment or 
otherwise by salary offset from current disposable pay in accordance 
with 37 U.S.C. 1007 or 5 U.S.C. 5514 as implemented by 32 CFR part 90 
and 5 CFR part 550. Where applicable, the request for recovery of 
erroneous CHAMPUS payments shall be submitted to the debtor's paying 
agency in accordance with 5 CFR 550.1106. Before contacting the paying 
agency, the Director, OCHAMPUS, or a designee, will provide the debtor 
written notification of the agency's intent to collect the debt by means 
of salary offset, authorized by 5 U.S.C. 5514. The notification will 
include, as a minimum:
    (A) The agency's determination that a debt is owed, including the 
origin, nature, and the amount of the debt;
    (B) The date by which payment is to be made, which will normally be 
30 days from the date the demand letter is mailed;
    (C) The amount, frequency, proposed beginning date and duration of 
the intended deductions, which will be determined in accordance with the 
provisions of 5 CFR 550.1104 or 32 CFR part 90, as appropriate. 
Ordinarily, the size of installment deductions must bear a reasonable 
relationship to the size of the debt and the employee's ability to pay 
(4 CFR 102.11). However, the amount deducted for any period must not 
exceed 15 percent of the disposable pay from which the deduction is made 
unless the debtor has agreed in writing to the deduction of a greater 
amount. Debts must be collected in one lump-sum whenever possible. 
However, if the employee is financially unable to pay in one lump-sum, 
or the amount of the debt exceeds 15 percent of current disposable pay 
for an officially established pay interval, collection must be made in 
installments. Such installment deductions must be made to effect 
collection within the period of anticipated active duty or employment. 
If the debtor retires or resigns or if his or her employment or period 
of active duty ends before collection of the debt is completed, offset 
from subsequent payments of any kind due the employee from the paying 
agency as of the date of separation shall be made to the extent 
necessary to liquidate the debt pursuant to 31 U.S.C. 3716 as 
implemented by 5 CFR part 550 and 32 CFR part 90. If possible, the 
installment payments should be sufficient in size and frequency to 
liquidate the government's claim in not more than 3 years. Installment 
payments of less than $50 per month should be accepted only with 
reasonable justification. An employee's involuntary payment of all or 
any portion of a debt being collected under 5 U.S.C. 5514 will not be 
construed as a waiver of any rights the debtor may have under that 
statute or any other provisions of contract or law, unless there are 
statutory or contractual provisions to the contrary.
    (D) An explanation of interest, penalties, and administrative costs, 
including a statement that such assessments must be made unless excused 
in accordance with the Federal Claims Collection Standards;
    (E) Advice that the debtor may inspect and copy government records 
relating to the debt or, if debtor or his or her representative cannot 
personally inspect the records, to request and receive a copy of such 
records. Requests for copies of the records relating to the debt shall 
be made no later than 10 days from the receipt by the debtor of the 
notice of indebtedness.

[[Page 241]]

    (F) An opportunity for a review by the agency of its determination 
regarding the existence or the amount of the debt, or when a repayment 
schedule is established other than by written agreement, concerning the 
terms of the repayment schedule. The debtor shall be advised that a 
challenge to either the existence of the debt, the amount of the debt, 
or the repayment schedule, must be made within 30 days of the receipt by 
the debtor of the notice of indebtedness or within 45 days after receipt 
of the records relating to the debt, if such records are requested by 
the debtor. A request for waiver or reconsideration should be 
accompanied by supporting documents indicating why the debtor believes 
he is not so indebted, or by a financial affidavit supporting his 
request for an alternative repayment schedule;
    (G) Notice that the timely filing of a petition for review will stay 
the commencement of collection proceedings;
    (H) Notice that a final decision on the review (if one is requested) 
will be issued at the earliest practical date, but not later than 60 
days after the filing of the petition requesting the review unless the 
employee requests, and the agency grants, a delay in the proceedings;
    (I) The opportunity, if it has not been previously provided, to 
enter into a written agreement to establish a schedule for repayment of 
the debt in lieu of offset. The agreement will be signed by both the 
debtor and the agency's representative and will be kept in the agency's 
files;
    (J) Notice that any knowingly false or frivolous statements, 
representations, or evidence may subject the debtor to:
    (1) Disciplinary procedures appropriate under chapter 75 of Title 5 
U.S. Code, 5 CFR part 752, or any other applicable statutes or 
regulations;
    (2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
any other applicable authority, or
    (3) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002, or 
any other applicable authority;
    (K) Where applicable, notice of the debtor's right to appeal, under 
Sec. 199.10 of this part;
    (L) That amounts paid on or deducted for the debt which are later 
waived or found not owed to the United States will promptly be refunded 
to the debtor. Refunds do not bear interest unless required or permitted 
by law or contract;
    (M) The specific address to which all correspondence regarding the 
debt shall be directed. Unless otherwise prohibited by law, moneys which 
are due and payable to a debtor from the Civil Service Retirement and 
Disability Fund may be administratively offset in reasonable amounts in 
order to collect in one full payment or a minimal number of payments 
debts owed to the United States by the debtor. The General Counsel, 
OCHAMPUS, may forward requests for offset of debts arising from the 
operation of CHAMPUS to the appropriate officials of the Office of 
Personnel Management. These requests shall comply with the provisions of 
4 CFR 102.4 and 5 CFR part 550.
    (vii) Referral to debt collection agencies. Pursuant to the 
provisions of the Federal Claims Collection Standards (4 CFR 102.6), the 
Director, OCHAMPUS, or a designee, is authorized to enter into contracts 
for collection services, including contracts with private collection 
agencies for the purpose of supplementing and strengthening the 
collection efforts of the Department of Defense in recouping erroneous 
CHAMPUS payments. Such contracts will supplement but not replace the 
basic collection program described herein. The authority to resolve 
disputes, compromise claims, terminate collection action and initiate 
legal action may not be delegated in such contracts but will be retained 
by the Director, OCHAMPUS, or a designee. Individuals or firms that 
enter into contracts for collection services pursuant to this paragraph 
are subject to the Privacy Act of 1974, as amended, 5 U.S.C. 552a, 
federal and state laws and regulations pertaining to debt collection 
practices, including the Fair Debt Collection Practices Act, 15 U.S.C. 
1692. Debt collection contractors shall be required to account strictly 
for all amounts collected and must agree to provide any data contained 
in their files relating to 4 CFR 105.2(a) (1), (2)

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and (3). Contracts for commercial collection services must comply with 
32 CFR part 90.
    (viii) Referrals to consumer reporting agencies. The Director, 
OCHAMPUS, or a designee, is authorized to provide for the reporting of 
delinquent debts to consumer reporting agencies. Delinquent debts are 
those which are not paid or for which satisfactory payment arrangements 
are not made by the due date specified in the initial notification of 
indebtedness, or those for which the debtor has entered into a written 
payment agreement and installment payments are past due 30 days or 
longer. These referrals may be made only after publication of a 
``routine use'' for the disclosures involved as required by the Privacy 
Act of 1974, as amended, 5 U.S.C. 552a. Procedures developed for such 
referrals must also insure that an accounting of the disclosures is kept 
which is available to the debtor; that the consumer reporting agencies 
are provided with corrections and annotations of disagreements by the 
debtor; and that reasonable efforts are made to assure that the 
information to be reported is accurate, complete, timely and relevant. 
When requested by a consumer reporting agency, verification of 
information disclosed will promptly be provided. Once a claim has been 
reviewed and determined to be valid, a complete explanation of the claim 
will be given the debtor. When the claim is overdue, the individual will 
be notified in writing that payment is overdue; that within 60 days, 
disclosure of the claim shall be made to a consumer reporting agency 
unless satisfactory payment arrangements are made or unless the debtor 
requests an administrative review and demonstrates some basis on which 
the debt is legitimately disputed; and of the specific information to be 
disclosed to the consumer reporting agency. The information to be 
disclosed to the consumer reporting agency will be limited to 
information necessary to establish the identity of the debtor, including 
name, address and taxpayer identification number; the amount, status and 
history of the claim; and the agency or program under which the claim 
arose. Reasonable action will be taken to locate an individual for whom 
a current address is not available.
    (ix) Use and disclosure of mailing addresses. In attempting to 
locate a debtor in the collection of a debt under this section, the 
Director, OCHAMPUS, or a designee, may send a written request to the 
Secretary of the Treasury, or a designee, for current address 
information from records of the Internal Revenue Service. These requests 
will comply with the provisions of 26 U.S.C. 6103(p)(4) and applicable 
regulations of the Internal Revenue Service. Disclosure of a mailing 
address so obtained may be made pursuant to 4 CFR 102.18(b) and 31 
U.S.C. 3711.
    (g) Compromise, waiver, suspension or termination of collection 
actions arising under the Federal Claims Collection Act. (1) Basic 
considerations. Federal claims against the debtor and in favor of the 
United States arising out of the administration of the CHAMPUS may be 
compromised or collection action taken thereon may be suspended or 
terminated in compliance with the Federal Claims Collection Act, 31 
U.S.C. 3711(a)(2) as implemented by the Federal Claims Collection 
Standards, 4 CFR parts 101 through 105.
    (2) Authority. CHAMPUS fiscal intermediaries are not authorized to 
compromise or to suspend or terminate collection action on federal 
CHAMPUS claims. Only the Director, OCHAMPUS, or a designee, and 
Uniformed Service claims officers acting under the provisions of their 
own regulations, are so authorized.
    (3) Waiver of collection of erroneous payments due from certain 
persons unaware of loss of CHAMPUS eligibility.
    (i) The Director, OCHAMPUS may waive collection of payments 
otherwise due from certain persons as a result of health benefits 
received under this part after the termination of the person's 
eligibility for such benefits. Waiver may be granted if collection of 
such payments would be against equity and good conscience and not in the 
best interest of the United States. These criteria are met by a finding 
that there is no indication of fraud, misrepresentation, fault, or lack 
of good faith on the part of the person who received the erroneous 
payment or any other person

[[Page 243]]

having an interest in obtaining such waiver.
    (ii) Persons eligible for waiver. The following persons are eligible 
for waiver:
    (A) A person who:
    (1) Is entitled to Medicare Part A by reason of disability or end 
stage renal disease;
    (2) In the absence of such entitlement, would have been eligible for 
CHAMPUS under 10 U.S.C. 1086; and
    (3) At the time of the receipt of such benefits, was under age 65.
    (B) Any participating provider of care who received direct payment 
for care provided to a person described in paragraph (g)(ii)(A) of this 
section pursuant to an assignment of benefits from such person.
    (iii) The authority to waive collection of payments under this 
section shall apply with regard to health benefits provided during the 
period beginning January 1, 1967, and ending on the later of: the 
termination date of any special enrollment period for Medicare Part B 
provided specifically for such persons; or July 1, 1996.
    (4) Basis for compromise. A claim may be compromised hereunder if 
the government cannot collect the full amount if:
    (i) The debtor or the estate of a debtor does not have the present 
or prospective ability to pay the full amount within a reasonable time;
    (ii) The debtor refuses to pay the claim in full and the government 
is unable to enforce collection of the full amount within a reasonable 
time by enforced collection proceedings;
    (iii) There is real doubt concerning the government's ability to 
prove its case in court for the full amount claimed either because of 
the legal issues involved or a bona fide dispute as to the facts; or
    (iv) The cost of collecting the claim does not justify enforced 
collection of the full amount.
    (5) Basis for suspension. Collection action may be suspended for 
either of the following reasons if future collection action may be 
sufficiently productive to justify periodic review and action on the 
claim giving consideration to its size and the amount which may be 
realized thereon:
    (i) The debtor cannot be located; or
    (ii) The debtor is unable to make payments on the government's claim 
or effect a compromise at the time, but the debtor's future prospects 
justify retention of the claim for periodic review and action and:
    (A) The applicable statute of limitations has been tolled or started 
running anew; or
    (B) Future collection action can be effected by offset, 
notwithstanding the statute of limitations with due regard to the 10-
year limitation prescribed by 31 U.S.C. 3716(c)(1); or
    (C) The debtor agrees to pay interest on the amount of the debt on 
which collection action will be temporarily suspended, and such 
temporary suspension is likely to enhance the debtor's ability to fully 
pay the principal amount of the debt with interest at a later date.
    (iii) Consideration may be given by the Director, OCHAMPUS, or a 
designee, to suspend collection action pending action on a request for a 
review of the government's claim against the debtor or pending an 
administrative review under Sec. 199.10 of this part of any CHAMPUS 
claim or claims directly involved in the government's claim against the 
debtor. Suspension under this paragraph will be based upon appropriate 
consideration, on a case-by-case basis as to whether:
    (A) There is a reasonable possibility that the debt (in whole or in 
part) will be found not owing from the debtor;
    (B) The Government's interest would be protected if suspension were 
granted by reasonable assurance that the debt would be recovered if the 
debtor does not prevail; and
    (C) Collection of the debt will cause undue hardship.
    (6) Basis for termination. Collection action may be terminated for 
one or more of the following reasons:
    (i) The United States cannot collect or enforce collection of any 
significant sum from the debtor having due regard to the judicial 
remedies available to the government, the debtor's future financial 
prospects and the exemptions available to the debtor under state and 
federal law;
    (ii) The debtor cannot be located, and either:

[[Page 244]]

    (A) There is no security remaining to be liquidated, or
    (B) The applicable statute of limitations has run and the prospects 
of collecting by offset, notwithstanding the bar of the statute of 
limitations, are too remote to justify retention of the claim;
    (iii) The cost of further collection action is likely to exceed any 
recovery;
    (iv) It is determined that the claim is legally without merit; or
    (v) Evidence necessary to prove the claim cannot be produced or the 
necessary witnesses are unavailable and efforts to induce voluntary 
payment are unavailing.
    (7) Factors considered. In determining whether a claim will be 
compromised, or collection action terminated or suspended, the 
responsible CHAMPUS collection authority will consider the following 
factors:
    (i) Age and health of the debtor, present and potential income, 
inheritance prospects, possible concealment or improper transfer of 
assets and the availability of assets or income which may be realized 
upon by enforced collection proceedings;
    (ii) Applicability of exemptions available to a debtor under state 
or federal law;
    (iii) Uncertainty as to the price which collateral or other property 
may bring at forced sale; or
    (iv) The probability of proving the claim in court, the probability 
of full or partial recovery, the availability of necessary evidence and 
related pragmatic considerations.
    (8) Amount of compromise. The amount acceptable in compromise will 
be reasonable in relation to the amount that can be recovered by 
enforced collection proceedings. Consideration shall be given to the 
following:
    (i) The exemptions available to the debtor under state and federal 
law;
    (ii) The time necessary to collect the debt;
    (iii) The litigative probabilities involved; and
    (iv) The administrative and litigative costs of collection where the 
cost of collecting the claim is a basis for compromise.
    (9) Payment of compromised claims. (i) Time and manner. Compromised 
claims are to be paid in one lump sum if possible. However, if payment 
of a compromise is necessary, a legally enforceable compromise agreement 
must be obtained. Payment of the amount that CHAMPUS has agreed to 
accept as a compromise in full settlement of a CHAMPUS claim must be 
made within the time and in the manner prescribed in the compromise 
agreement. Any such compromised claim is not settled until the full 
payment of the compromised amount has been made within the time and the 
manner prescribed. Compromise agreements must provide for the 
reinstatement of the prior indebtedness, less sums paid thereon, and 
acceleration of the balance due upon default in the payment of any 
installment.
    (ii) Failure to pay the compromised amount. Failure of any debtor to 
make payment as provided in the compromise agreement will have the 
effect of reinstating the full amount of the original claim, less any 
amounts paid prior to the default.
    (10) Effect of compromise, waiver, suspension or termination of 
collection action. Pursuant to the Internal Revenue Code, 26 U.S.C. 
6041, compromises and terminations of undisputed debts not discharged in 
a Title 11 bankruptcy case and totaling $600 or more for the year will 
be reported to the Internal Revenue Service in the manner prescribed for 
inclusion in the debtor's gross income for that year. Any action taken 
under paragraph (g) of this section regarding the compromise of a 
federal claim, or waiver or suspension or termination of collection 
action on a federal claim is not an initial determination for purposes 
of the appeal procedures Sec. 199.10.
    (h) Referrals for collection. (1) Prompt referral. Federal claims of 
$600 or more on which collection action has been taken in accordance 
with the provisions of this section and which cannot be collected or 
compromised or on which collection action cannot be suspended or 
terminated, as provided herein, will be promptly referred by the 
Director, OCHAMPUS, or a designee, to the Department of Justice for 
litigation in accordance with 4 CFR part 105. Such referrals will be 
made as early as

[[Page 245]]

possible consistent with aggressive collection action by CHAMPUS fiscal 
intermediaries and OCHAMPUS and well within the period for bringing a 
timely suit against the debtor. Ordinarily referrals will be made within 
one year of the OCHAMPUS final determination of the fact and the amount 
of the debt.
    (2) Report of prior collection actions. The Director, OCHAMPUS, or a 
designee, will prepare a Claims Collection Litigation Report (CCLR) for 
each case referred for collection under the provisions of this section. 
The CCLR shall also be used when a claim is referred to the Department 
of Justice in order to obtain approval of that Department with respect 
to compromise, suspension, or termination when such approval is required 
by 4 CFR 103.1(b) and 104.1(b). The CCLR will include, as a minimum, the 
following:
    (i) A checklist or brief summary of the actions previously taken to 
collect or compromise the claim. If any of the required administrative 
collection actions have been omitted, the reason for its omission must 
be provided.
    (ii) The current address or the debtor, or the same and address of 
the agent for a corporation upon whom service may be made. Reasonable 
and appropriate steps will be taken to locate missing parties in all 
cases. Referrals to the Department of Justice for the institution of 
foreclosure or other proceedings, in which the current address of any 
party is unknown, will be accompanied by a listing of the prior known 
addresses of such party and a statement of the steps taken to locate 
that party.
    (iii) Reasonably current credit data indicating that there is a 
reasonable prospect of effecting enforced collection from the debtor, 
having due regard for the exemptions available to the debtor under state 
and federal law and the judicial remedies available to the government. 
Such credit data may take the form of a commercial credit report; an 
agency investigative report showing the debtor's assets, liabilities, 
income, and expenses; the individual debtor's own financial statement 
executed under penalty of perjury reflecting the debtor's assets, 
liabilities, income, and expenses; or an audited balance sheet of a 
corporate debtor. Such credit data may be omitted if a surety bond is 
available in an amount sufficient to satisfy the claim in full; the 
forced sale value of any security available for application to the 
government's claim is sufficient to satisfy the claim in full; the 
debtor is in bankruptcy or receivership; the debtor's liability to the 
government is fully covered by insurance, in which case such information 
as can be developed concerning the identity and address of the insurer 
and the type and amount of insurance coverage will be furnished; or the 
nature of the debtor is such that credit data is not normally available 
or cannot reasonably be obtained, for example, a unit of state or local 
government.
    (3) Preservation of evidence. The Director, OCHAMPUS, or a designee, 
will take such action as is necessary to ensure that all files, records 
and exhibits on claims referred hereunder are properly preserved.
    (i) Claims Involving Indications of Fraud, Filing of False Claims or 
Misrepresentation.
    Any case in which there is an indication of fraud, filing of false 
claims or misrepresentation will be promptly referred to the Director, 
OCHAMPUS, or a designee, for processing. The Director, OCHAMPUS, or a 
designee, will investigate and evaluate the case and either refer the 
case to the appropriate investigative law enforcement agency or return 
the claim for other appropriate administrative action, including 
collection action under this section. Payment on all CHAMPUS beneficiary 
or provider claims in which fraud, filing false claims or 
misrepresentation is suspected will be suspended until payment or denial 
of the claim is authorized by the Director, OCHAMPUS, or a designee. 
Collection action on all federal claims in which a suspicion of fraud, 
misrepresentation or filing false claims arises will be suspended 
pending referral to the appropriate law enforcement agencies by the 
Director, OCHAMPUS, or a designee. Only the Department of Justice has 
authority to

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compromise or terminate collection action on such claims.

[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 63 
FR 27678, May 20, 1998]



Sec. 199.12  Third party recoveries.

    (a) General. This section deals with the right of the United States 
to recover from third-parties the costs of medical care furnished to or 
paid on behalf of TRICARE beneficiaries. These third-parties may be 
individuals or entities that are liable for tort damages to the injured 
TRICARE beneficiary or a liability insurance carrier covering the 
individual or entity. These third-parties may also include other 
entities who are primarily responsible to pay for the medical care 
provided to the injured beneficiary by reason of an insurance policy, 
workers' compensation program or other source of primary payment.
    Authority. (1) Third-party payers. This part implements the 
provisions of 10 U.S.C. 1095b which, in general, allow the Secretary of 
Defense to authorize certain TRICARE claims to be paid, even though a 
third-party payer may be primary payer, with authority to collect from 
the third-party payer the TRICARE costs incurred on behalf of the 
beneficiary. (See Sec. 199.2 for definition of ``third-party payer.'') 
Therefore, 10 U.S.C. 1095b establishes the statutory obligation of 
third-party payers to reimburse the United States the costs incurred on 
behalf of TRICARE beneficiaries who are also covered by the third-party 
payer's plan.
    (2) Federal Medical Care Recovery Act. (i) In general. In many cases 
covered by this section, the United States has a right to collect under 
both 10 U.S.C. 1095b and the Federal Medical Care Recovery Act (FMCRA), 
Public Law 87-693 (42 U.S.C. 2651 et. seq.). In such cases, the 
authority is concurrent and the United States may pursue collection 
under both statutory authorities.
    (ii) Cases involving tort liability. In cases in which the right of 
the United States to collect from an automobile liability insurance 
carrier is premised on establishing some tort liability on some third 
person, matters regarding the determination of such tort liability shall 
be governed by the same substantive standards as would be applied under 
the FMCRA including reliance on state law for determinations regarding 
tort liability. In addition, the provisions of 28 CFR part 43 
(Department of Justice regulations pertaining to the FMCRA) shall apply 
to claims made under the concurrent authority of the FMCRA and 10 U.S.C. 
1095b. All other matters and procedures concerning the right of the 
United States to collect shall, if a claim is made under the concurrent 
authority of the FMCRA and this section, be governed by 10 U.S.C. 1095b 
and this part.
    (c) Appealability. This section describes the procedures to be 
followed in the assertion and collection of third-party recovery claims 
in favor of the United States arising from the operation of TRICARE. 
Actions taken under this section are not initial determinations for the 
purpose of the appeal procedures of Sec. 199.10 of this part. However, 
the proper exercise of the right to appeal benefit or provider status 
determinations under the procedures set forth in Sec. 199.10 may affect 
the processing of federal claims arising under this section. Those 
appeal procedures afford a TRICARE beneficiary or participating provider 
an opportunity for administrative appellate review in cases in which 
benefits have been denied and in which there is a significant factual 
dispute. For example, a TRICARE contractor may deny payment for services 
that are determined to be excluded as TRICARE benefits because they are 
found to be not medically necessary. In that event the TRICARE 
contractor will offer an administrative appeal as provided in Sec. 
199.10 of this part on the medical necessity issue raised by the adverse 
benefit determination. If the care in question results from an 
accidental injury and if the appeal results in a reversal of the initial 
determination to deny the benefit, a third-party recovery claim may 
arise as a result of the appeal decision to pay the benefit. However, in 
no case is the decision to initiate such a claim itself appealable under 
Sec. 199.10.
    (d) Statutory obligation of third-party payer to pay. (1) Basic 
Rule. Pursuant to 10 U.S.C. 1095b, when the Secretary of Defense 
authorizes certain TRICARE

[[Page 247]]

claims to be paid, even though a third-party payer may be primary payer 
(as specified under Sec. 199.8(c)(2)), the right to collect from a 
third-party payer the TRICARE costs incurred on behalf of the 
beneficiary is the same as exists for the United States to collect from 
third-party payers the cost of care provided by a facility of the 
uniformed services under 10 U.S.C. 1095 and part 220 of this title. 
Therefore the obligation of a third-party payer to pay is to the same 
extent that the beneficiary would be eligible to receive reimbursement 
or indemnification from the third-party payer if the beneficiary were to 
incur the costs on the beneficiary's own behalf.
    (2) Application of cost shares. If the third-party payer's plan 
includes a requirement for a deductible or copayment by the beneficiary 
of the plan, then the amount the United States may collect from the 
third-party payer is the cost of care incurred on behalf of the 
beneficiary less the appropriate deductible or copayment amount.
    (3) Claim from the United States exclusive. The only way for a 
third-party payer to satisfy its obligation under 10 U.S.C. 1095b is to 
pay the United States or authorized representative of the United States. 
Payment by a third-party payer to the beneficiary does not satisfy 10 
U.S.C. 1095b.
    (4) Assignment of benefits not necessary. The obligation of the 
third-party to pay is not dependent upon the beneficiary executing an 
assignment of benefits to the United States.
    (e) Exclusions impermissible. (1) Statutory requirement. With the 
same right to collect from third-party payers as exists under 10 U.S.C. 
1095(b), no provision of any third-party payer's plan having the effect 
of excluding from coverage or limiting payment for certain care if that 
care is provided or paid by the United States shall operate to prevent 
collection by the United States.
    (2) Regulatory application. No provision of any third-party payer's 
plan or program purporting to have the effect of excluding or limiting 
payment for certain care that would not be given such effect under the 
standards established in part 220 of this title to implement 10 U.S.C. 
1095 shall operate to exclude or limit payment under 10 U.S.C. 1095b or 
this section.
    (f) Records available. When requested, TRICARE contractors or other 
representatives of the United States shall make available to 
representatives of any third-party payer from which the United States 
seeks payment under 10 U.S.C. 1095b, for inspection and review, 
appropriate health care records (or copies of such records) of 
individuals for whose care payment is sought. Appropriate records which 
will be made available are records which document that the TRICARE costs 
incurred on behalf of beneficiaries which are the subject of the claims 
for payment under 10 U.S.C. 1095b were incurred as claimed and the 
health care service were provided in a manner consistent with 
permissible terms and conditions of the third-party payer's plan. This 
is the sole purpose for which patient care records will be made 
available. Records not needed for this purpose will not be made 
available.
    (g) Remedies. Pursuant to 10 U.S.C. 1095b, when the Director, 
TRICARE Management Activity, or a designee, authorizes certain TRICARE 
claims to be paid, even though a third-party payer may be primary payer, 
the right to collect from a third-party payer the TRICARE costs incurred 
on behalf of the beneficiary is the same as exists for the United States 
to collect from third-party payers the cost of care provided by a 
facility of the uniformed services under 10 U.S.C. 1095.
    (1) This includes the authority under 10 U.S.C. 1095(e)(1) for the 
United States to institute and prosecute legal proceedings against a 
third-party payer to enforce a right of the United States under 10 
u.S.C. 1095b and this section.
    (2) This also includes the authority under 10 u.S.C. 1095(e)(2) for 
an authorized representative of the United States to compromise, settle 
or waive a claim of the United States under 10 U.S.C. 1095b and this 
section.
    (3) The authorities provided by the Federal Claims Collection Act of 
1966, as amended (31 U.S.C. 3701 et. seq.) and any implementing 
regulations (including Sec. 199.11) regarding collection of 
indebtedness due the United States shall also be available to effect 
collections

[[Page 248]]

pursuant to 10 U.S.C. 1095b and this section.
    (h) Obligations of beneficiaries. To insure the expeditious and 
efficient processing of third-party payer claims, any person furnished 
care and treatment under TRICARE, his or her guardian, personal 
representative, counsel, estate, dependents or survivors shall be 
required:
    (1) To provide information regarding coverage by a third-party payer 
plan and/or the circumstances surrounding an injury to the patient as a 
conditional precedent of the processing of a TRICARE claim involving 
possible third-party payer coverage.
    (2) To furnish such additional information as may be requested 
concerning the circumstances giving rise to the injury or disease for 
which care and treatment are being given and concerning any action 
instituted or to be instituted by or against a third person; and,
    (3) To cooperate in the prosecution of all claims and actions by the 
United States against such third person.
    (i) Reponsibility for recovery. The Director, TRICARE Management 
Activity, or a designee, is responsible for insuring that TRICARE claims 
arising under 10 U.S.C. 1095b and this section (including claims 
involving the FMCRA) are properly referred to and coordinated with 
designated claims authorities of the uniformed services who shall assert 
and recover TRICARE costs incurred on behalf of beneficiaries. 
Generally, claims arising under this section will be processed as 
follows:
    (1) Identification and referral. In most cases where civilian 
providers provide medical care and payment for such care has been by a 
TRICARE contractor, initial identification of potential third-party 
payers will be by the TRICARE contractor. In such cases, the TRICARE 
contractor is responsible for conducting a preliminary investigation and 
referring the case to designated appropriate claims authorities of the 
Uniformed Services.
    (2) Processing TRICARE claims. When the TRICARE contractor initially 
identifies a claim as involving a potential third-party payer, it shall 
request additional information concerning the circumstances of the 
injury or disease and/or the identify of any potential third-party payer 
from the beneficiary or other responsible party unless adequate 
information is submitted with the claim. The TRICARE claim will be 
suspended and no payment issued pending receipt of the requested 
information. If the requested information is not received, the claim 
will be denied. A TRICARE beneficiary may expedite the processing of his 
or her TRICARE claim by submitting appropriate information with the 
first claim for treatment of an accidental injury. Third-party payer 
information normally is required only once concerning any single 
accidental injury on episode of care. Once the third-party payer 
information pertaining to a single incident or episode of care is 
received, subsequent claims associated with the same incident or episode 
of care may be processed to payment in the usual manner. If, however, 
the requested third-party payer information is not received, subsequent 
claims involving the same incident or episode of care will be suspended 
or denied as stated above.
    (3) Ascertaining total potential liability. It is essential that the 
appropriate claims responsible for asserting the claim against the 
third-party payer recive from the TRICARE contractor a report of all 
amounts expended by the United States for care resulting from the 
incident upon which potential liability in the third party is based 
(including amounts paid by TRICARE for both inpatient and outpatient 
care). Prior to assertion and final settlement of a claim, it will be 
necessary for the responsible claims authority to secure from the 
TRICARE contractor updated information to insure that all amounts 
expended under TRICARE are included in the government's claim. It is 
equally important that information on future medical payments be 
obtained through the investigative process and included as a part of the 
government's claim. No TRICARE-related claim will be settled, 
compromised or waived without full consideration being given to the 
possible future medical payment aspects of the individual case.
    (j) Reporting requirements. Pursuant to 10 U.S.C. 1079a, all refunds 
and other

[[Page 249]]

amounts collected in the administration of TRICARE shall be credited to 
the appropriation available for that program for the fiscal year in 
which the refund or amount is collected. Therefore, the Department of 
Defense requires an annual report stating the number and dollar amount 
of claims asserted against, and the number and dollar amount of 
recoveries from third-party payers (including FMCRA recoveries) arising 
from the operation of the TRICARE. To facilitate the preparation of this 
report and to maintain program integrity, the following reporting 
requirements are established:
    (1) TRICARE contractors. Each TRICARE contractor shall submit on or 
before January 31 of each year an annual report to the Director, TRICARE 
Management Activity, or a designee, covering the 12 months of the 
previous calendar year. This report shall contain, as a minimum, the 
number and total dollar of cases of potential third-party payer/FMCRA 
liability referred to uniformed services claims authorities for further 
investigation and collection. These figures are to be itemized by the 
states and uniformed services to which the cases are referred.
    (2) Uniformed Services. Each uniformed service will submit to the 
Director, TRICARE Management Activity, or designee, an annual report 
covering the 12 calendar months of the previous year, setting forth, as 
a minimum, the number and total dollar amount of cases involving TRICARE 
payments received from TRICARE contractors, the number and dollar amount 
of cases involving TRICARE payments received from other sources, and the 
number and dollar amount of claims actually asserted against, and the 
dollar amount of recoveries from, third-payment payers or under the 
FMCRA. The report, itemized by state and foreign claims jurisdictions, 
shall be provided no later than February 28 of each year.
    (3) Implementation of the reporting requirements. The Director, 
TRICARE Management Activity, or a designee shall issue guidance for 
implementation of the reporting requirements prescribed by this section.

[68 FR 6619, Feb. 10, 2003]



Sec. 199.13  TRICARE Dental Program.

    (a) General provisions--(1) Purpose. This section prescribes 
guidelines and policies for the delivery and administration of the 
TRICARE Dental Program (TDP) of the Uniformed Services of the Army, the 
Navy, the Air Force, the Marine Corps, the Coast Guard, the Commissioned 
Corps of the U.S. Public Health Service (USPHS) and the National Oceanic 
and Atmospheric Administration (NOAA) Corps. The TDP is a premium based 
indemnity dental insurance coverage plan that is available to specified 
categories of individuals who are qualified for these benefits by virtue 
of their relationship to one of the seven (7) Uniformed Services and 
their voluntary decision to accept enrollment in the plan and cost share 
(when applicable) with the Government in the premium cost of the 
benefits. The TDP is authorized by 10 U.S.C. 1076a, TRICARE dental 
program, and this section was previously titled the ``Active Duty 
Dependents Dental Plan''. The TDP incorporates the former 10 U.S.C. 
1076b, Selected Reserve dental insurance, and the section previously 
titled the ``TRICARE Selected Reserve Dental Program'', Sec. 199.21.
    (2) Applicability--(i) Geographic scope. (A) The TDP is applicable 
geographically within the fifty (50) States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, Guam, and the 
U.S. Virgin Islands. These areas are collectively referred to as the 
``CONUS (or Continental United States) service area''.
    (B) Extension of the TDP to areas outside the CONUS service area. In 
accordance with the authority cited in 10 U.S.C. 1076a(h), the Assistant 
Secretary of Defense (Health Affairs) (ASD(HA)) may extend the TDP to 
areas other than those areas specified in paragraph (a)(2)(i)(A) of this 
section for the eligible members and eligible dependents of members of 
the Uniformed Services. These areas are collectively referred to as the 
``OCONUS (or outside the Continental United States) service area''. In 
extending the TDP outside the CONUS service area, the ASD(HA), or 
designee, is authorized to establish program elements, methods of 
administration and

[[Page 250]]

payment rates and procedures to providers that are different from those 
in effect for the CONUS service area to the extent the ASD(HA), or 
designee, determines necessary for the effective and efficient operation 
of the TDP. This includes provisions for preauthorization of care if the 
needed services are not available in a Uniformed Service overseas dental 
treatment facility and payment by the Department of certain cost-shares 
(or co-payments) and other portions of a provider's billed charges for 
certain beneficiary categories. Other differences may occur based on 
limitations in the availability and capabilities of the Uniformed 
Service overseas dental treatment facility and a particular nation's 
civilian sector providers in certain areas. These differences include 
varying licensure and certification requirements of OCONUS providers, 
Uniformed Service provider selection criteria and local results of 
provider selection, referral, beneficiary pre-authorization and 
marketing procedures, and care for beneficiaries residing in distant 
areas. The Director, Office of Civilian Health and Medical Program of 
the Uniformed Services (OCHAMPUS) shall issue guidance, as necessary, to 
implement the provisions of paragraph (a)(2)(i)(B). Beneficiaries will 
be eligible for the same TDP benefits in the OCONUS service area 
although services may not be available or accessible in all OCONUS 
countries.
    (ii) Agency. The provisions of this section apply throughout the 
Department of Defense (DoD), the United States Coast Guard, the USPHS 
and NOAA.
    (iii) Exclusion of benefit services performed in military dental 
care facilities. Except for emergency treatment, dental care provided 
outside the United States, and services incidental to noncovered 
services, dependents of active duty, Selected Reserve and Individual 
Ready Reserve members enrolled in the TDP may not obtain those services 
that are benefits of the TDP in military dental care facilities, as long 
as those covered benefits are available for cost-sharing under the TDP. 
Enrolled dependents of active duty, Selected Reserve and Individual 
Ready Reserve members may continue to obtain noncovered services from 
military dental care facilities subject to the provisions for space 
available care.
    (3) Authority and responsibility--(i) Legislative authority--(A) 
Joint regulations. 10 U.S.C. 1076a authorized the Secretary of Defense, 
in consultation with the Secretary of Health and Human Services, and the 
Secretary of Transportation, to prescribe regulations for the 
administration of the TDP.
    (B) Administration. 10 U.S.C. 1073 authorizes the Secretary of 
Defense to administer the TDP for the Army, Navy, Air Force, and Marine 
Corps under DoD jurisdiction, the Secretary of Transportation to 
administer the TDP for the Coast Guard, when the Coast Guard is not 
operating as a service in the Navy, and the Secretary of Health and 
Human Services to administer the TDP for the Commissioned Corps of the 
USPHS and the NOAA Corps.
    (ii) Organizational delegations and assignments--(A) Assistant 
Secretary of Defense (Health Affairs) (ASD(HA)). The Secretary of 
Defense, by 32 CFR part 367, delegated authority to the ASD(HA) to 
provide policy guidance, management control, and coordination as 
required for all DoD health and medical resources and functional areas 
including health benefit programs. Implementing authority is contained 
in 32 CFR part 367. For additional implementing authority see Sec. 
199.1. Any guidelines or policy necessary for implementation of this 
Sec. 199.13 shall be issued by the Director, OCHAMPUS.
    (B) Evidence of eligibility. DoD, through the Defense Enrollment 
Eligibility Reporting System (DEERS), is responsible for establishing 
and maintaining a listing of persons eligible to receive benefits under 
the TDP.
    (4) Preemption of State and local laws. (i) Pursuant to 10 U.S.C. 
1103 and section 8025 (fourth proviso) of the Department of Defense 
Appropriations Act, 1994, DoD has determined that, in the administration 
of 10 U.S.C. chapter 55, preemption of State and local laws relating to 
health insurance, prepaid health plans, or other health care delivery or 
financing methods is necessary to achieve important Federal interests, 
including, but not limited to, the assurance of uniform national

[[Page 251]]

health programs for Uniformed Service beneficiaries and the operation of 
such programs at the lowest possible cost to DoD, that have a direct and 
substantial effect on the conduct of military affairs and national 
security policy of the United States. This determination is applicable 
to the dental services contracts that implement this section.
    (ii) Based on the determination set forth in paragraph (a)(4)(i) of 
this section, any State or local law relating to health or dental 
insurance, prepaid health or dental plans, or other health or dental 
care delivery or financing methods is preempted and does not apply in 
connection with the TDP contract. Any such law, or regulation pursuant 
to such law, is without any force or effect, and State or local 
governments have no legal authority to enforce them in relation to the 
TDP contract. (However, DoD may, by contract, establish legal 
obligations on the part of the dental plan contractor to conform with 
requirements similar or identical to requirements of State or local laws 
or regulations.)
    (iii) The preemption of State and local laws set forth in paragraph 
(a)(4)(ii) of this section includes State and local laws imposing 
premium taxes on health or dental insurance carriers or underwriters or 
other plan managers, or similar taxes on such entities. Such laws are 
laws relating to health insurance, prepaid health plans, or other health 
care delivery or financing methods, within the meaning of the statutes 
identified in paragraph (a)(4)(i) of this section. Preemption, however, 
does not apply to taxes, fees, or other payments on net income or profit 
realized by such entities in the conduct of business relating to DoD 
health services contracts, if those taxes, fees, or other payments are 
applicable to a broad range of business activity. For purposes of 
assessing the effect of Federal preemption of State and local taxes and 
fees in connection with DoD health and dental services contracts, 
interpretations shall be consistent with those applicable to the Federal 
Employees Health Benefits Program under 5 U.S.C. 8909(f).
    (5) Plan funds--(i) Funding sources. The funds used by the TDP are 
appropriated funds furnished by the Congress through the annual 
appropriation acts for DoD, the Department of Health and Human Services 
and the Department of Transportation and funds collected by the 
Uniformed Services or contractor through payroll deductions or through 
direct billing as premium shares from beneficiaries.
    (ii) Disposition of funds. TDP funds are paid by the Government (or 
in the case of direct billing, by the beneficiary) as premiums to an 
insurer, service, or prepaid dental care organization under a contract 
negotiated by the Director, OCHAMPUS, or a designee, under the 
provisions of the Federal Acquisition Regulation (FAR) (48 CFR chapter 
1).
    (iii) Plan. The Director, OCHAMPUS, or designee provides an 
insurance policy, service plan, or prepaid contract of benefits in 
accordance with those prescribed by law and regulation; as interpreted 
and adjudicated in accord with the policy, service plan, or contract and 
a dental benefits brochure; and as prescribed by requirements of the 
dental plan contractor's contract with the Government.
    (iv) Contracting out. The method of delivery of the TDP is through a 
competitively procured contract. The Director, OCHAMPUS, or a designee, 
is responsible for negotiating, under provisions of the FAR, a contract 
for dental benefits insurance or prepayment that includes responsibility 
for:
    (A) Development, publication, and enforcement of benefit policy, 
exclusions, and limitations in compliance with the law, regulation, and 
the contract provisions;
    (B) Adjudicating and processing claims; and conducting related 
supporting activities, such as enrollment, disenrollment, collection of 
premiums, eligibility verification, provider relations, and beneficiary 
communications.
    (6) Role of Health Benefits Advisor (HBA). The HBA is appointed 
(generally by the commander of an Uniformed Services medical treatment 
facility) to serve as an advisor to patients and staff in matters 
involving the TDP. The HBA may assist beneficiaries in applying for 
benefits, in the preparation of claims, and in their relations with 
OCHAMPUS and the dental plan contractor. However, the HBA

[[Page 252]]

is not responsible for the TDP's policies and procedures and has no 
authority to make benefit determinations or obligate the TDP's funds. 
Advice given to beneficiaries by HBAs as to determination of benefits or 
level of payment is not binding on OCHAMPUS or the dental plan 
contractor.
    (7) Right to information. As a condition precedent to the provision 
of benefits hereunder, the Director, OCHAMPUS, or designee, shall be 
entitled to receive information from an authorized provider or other 
person, institution, or organization (including a local, State, or 
United States Government agency) providing services or supplies to the 
beneficiary for which claims for benefits are submitted. While 
establishing enrollment and eligibility, benefits, and benefit 
utilization and performance reporting information standards, the 
Government has established and does maintain a system of records for 
dental information under the TDP. By contract, the Government audits the 
adequacy and accuracy of the dental plan contractor's system of records 
and requires access to information and records to meet plan 
accountabilities, to assist in contractor surveillance and program 
integrity investigations and to audit OCONUS financial transactions 
where the Department has a financial stake. Such information and records 
may relate to attendance, testing, monitoring, examination, or diagnosis 
of dental disease or conditions; or treatment rendered; or services and 
supplies furnished to a beneficiary; and shall be necessary for the 
accurate and efficient administration and payment of benefits under this 
plan. To assist in claims adjudication, grievance and fraud 
investigations, and the appeals process, and before an interim or final 
determination can be made on a claim of benefits, a beneficiary or 
active duty, Selected Reserve or individual Ready Reserve member must 
provide particular additional information relevant to the requested 
determination, when necessary. Failure to provide the requested 
information may result in denial of the claim and inability to 
effectively investigate the grievance or fraud or process the appeal. 
The recipient of such information shall in every case hold such records 
confidential except when:
    (i) Disclosure of such information is necessary to the determination 
by a provider or the dental plan contractor of beneficiary enrollment or 
eligibility for coverage of specific services;
    (ii) Disclosure of such information is authorized specifically by 
the beneficiary;
    (iii) Disclosure is necessary to permit authorized Government 
officials to investigate and prosecute criminal actions;
    (iv) Disclosure constitutes a routine use of a routine use of a 
record which is compatible with the purpose for which it was collected. 
This includes a standard and acceptable business practice commonly used 
among dental insurers which is consistent with the principle of 
preserving confidentiality of personal information and detailed clinical 
data. For example, the release of utilization information for the 
purpose of determining eligibility for certain services, such as the 
number of dental prophylaxis procedures performed for a beneficiary, is 
authorized;
    (v) Disclosure is pursuant to an order from a court of competent 
jurisdiction; or
    (vi) Disclosure by the Director, OCHAMPUS, or designee, is for the 
purpose of determining the applicability of, and implementing the 
provisions of, other dental benefits coverage or entitlement.
    (8) Utilization review and quality assurance. Claims submitted for 
benefits under the TDP are subject to review by the Director, OCHAMPUS, 
or designee, for quality of care and appropriate utilization. The 
Director, OCHAMPUS, or designee, is responsible for appropriate 
utilization review and quality assurance standards, norms, and criteria 
consistent with the level of benefits.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to Sec. 199.2. The following definitions apply 
only to this section:
    (1) Assignment of benefits. Acceptance by a nonparticipating 
provider of payment directly from the insurer while reserving the right 
to charge the beneficiary or active duty, Selected Reserve or Individual 
Ready Reserve member for any remaining amount of the fees

[[Page 253]]

for services which exceeds the prevailing fee allowance of the insurer.
    (2) Authorized provider. A dentist, dental hygienist, or certified 
and licensed anesthetist specifically authorized to provide benefits 
under the TDP in paragraph (f) of this section.
    (3) Beneficiary. A dependent of an active duty, Selected Reserve or 
Individual Ready Reserve member, or a member of the Selected Reserve or 
Individual Ready Reserve, who has been enrolled in the TDP, and has been 
determined to be eligible for benefits, as set forth in paragraph (c) of 
this section.
    (4) Beneficiary liability. The legal obligation of a beneficiary, 
his or her estate, or responsible family member to pay for the costs of 
dental care or treatment received. Specifically, for the purposes of 
services and supplies covered by the TDP, beneficiary liability includes 
cost-sharing amounts or any amount above the prevailing fee 
determination by the insurer where the provider selected by the 
beneficiary is not a participating provider or a provider within an 
approved alternative delivery system. In cases where a nonparticipating 
provider does not accept assignment of benefits, beneficiaries may have 
to pay the nonparticipating provider in full at the time of treatment 
and seek reimbursement directly from the insurer for all or a portion of 
the nonparticipating provider's fee. Beneficiary liability also includes 
any expenses for services and supplies not covered by the TDP, less any 
available discount provided as a part of the insurer's agreement with an 
approved alternative delivery system.
    (5) By report. Dental procedures which are authorized as benefits 
only in unusual circumstances requiring justification of exceptional 
conditions related to otherwise authorized procedures. These services 
are further defined in paragraph (e) of this section.
    (6) Contingency operation. Defined in 10 U.S.C. 101(a)(13) as a 
military operation designated as a contingency operation by the 
Secretary of Defense or a military operation that results in the 
exercise of authorities for ordering Reserve Component members to active 
duty without their consent and is therefore automatically a contingency 
operation.
    (7) Cost-share. The amount of money for which the beneficiary (or 
active duty, Selected Reserve or Individual Ready Reserve member) is 
responsible in connection with otherwise covered dental services (other 
than disallowed amounts) as set forth in paragraph (e) of this section. 
A cost-share may also be referred to as a ``co-payment.''
    (8) Defense Enrollment Eligibility Reporting System (DEERS). The 
automated system that is composed of two (2) phases:
    (i) Enrolling all active duty, Reserve and retired service members, 
their dependents, and the dependents of deceased service members; and
    (ii) Verifying their eligibility for health care benefits in the 
direct care facilities and through the TDP.
    (9) Dental hygienist. Practitioner in rendering complete oral 
prophylaxis services, applying medication, performing dental 
radiography, and providing dental education services with a certificate, 
associate degree, or bachelor's degree in the field, and licensed by an 
appropriate authority.
    (10) Dentist. Doctor of Dental Medicine (D.M.D.) or Doctor of Dental 
Surgery (D.D.S.) who is licensed to practice dentistry by an appropriate 
authority.
    (11) Diagnostic services. Category of dental services including:
    (i) Clinical oral examinations;
    (ii) Radiographic examinations; and
    (iii) Diagnostic laboratory tests and examinations provided in 
connection with other dental procedures authorized as benefits of the 
TDP and further defined in paragraph (e) of the section.
    (12) Endodontics. The etiology, prevention, diagnosis, and treatment 
of diseases and injuries affecting the dental pulp, tooth root, and 
periapical tissue as further defined in paragraph (e) of this section.
    (13) Initial determination. A formal written decision on a TDP 
claim, a request for TDP benefit pre-determination, a request by a 
provider for approval as an authorized provider, or a decision 
suspending, excluding or terminating a provider as an authorized 
provider under the TDP. Rejection of a

[[Page 254]]

claim or pre-determination, or of a request for benefit or provider 
authorization for failure to comply with administrative requirements, 
including failure to submit reasonably requested information, is not an 
initial determination. Responses to general or specific inquiries 
regarding TDP benefits are not initial determinations.
    (14) Nonparticipating provider. A dentist or dental hygienist that 
furnished dental services to a TDP beneficiary, but who has not agreed 
to participate or to accept the insurer's fee allowances and applicable 
cost-share as the total charge for the services. A nonparticipating 
provider looks to the beneficiary or active duty, Selected Reserve or 
Individual Ready Reserve member for final responsibility for payment of 
his or her charge, but may accept payment (assignment of benefits) 
directly from the insurer or assist the beneficiary in filing the claim 
for reimbursement by the dental plan contractor. Where the 
nonparticipating provider does not accept payment directly from the 
insurer, the insurer pays the beneficiary or active duty, Selected 
Reserve or Individual Ready Reserve member, not the provider.
    (15) Oral and maxillofacial surgery. Surgical procedures performed 
in the oral cavity as further defined in paragraph (e) of this section.
    (16) Orthodontics. The supervision, guidance, and correction of the 
growing or mature dentofacial structures, including those conditions 
that require movement of teeth or correction of malrelationships and 
malformations of their related structures and adjustment of 
relationships between and among teeth and facial bones by the 
application of forces and/or the stimulation and redirection of 
functional forces within the craniofacial complex as further defined in 
paragraph (e) of this section.
    (17) Participating provider. A dentist or dental hygienist who has 
agreed to accept the insurer's reasonable fee allowances or other fee 
arrangements as the total charge (even though less than the actual 
billed amount), including provision for payment to the provider by the 
beneficiary (or active duty, Selected Reserve or Individual Ready 
Reserve member) or any cost-share for covered services.
    (18) Party to the initial determination. Includes the TDP, a 
beneficiary of the TDP and a participating provider of services whose 
interests have been adjudicated by the initial determination. In 
addition, provider who has been denied approval as an authorized TDP 
provider is a party to the initial determination, as is a provider who 
is suspended, excluded or terminated as an authorized provider, unless 
the provider is excluded or suspended by another agency of the Federal 
Government, a state, or a local licensing authority.
    (19) Periodontics. The examination, diagnosis, and treatment of 
diseases affecting the supporting structures of the teeth as further 
defined in paragraph (e) of this section.
    (20) Preventive services. Traditional prophylaxis including scaling 
deposits from teeth, polishing teeth, and topical application of 
fluoride to teeth as further defined in paragraph (e) of this section.
    (21) Prosthodontics. The diagnosis, planning, making, insertion, 
adjustment, refinement, and repair of artificial devices intended for 
the replacement of missing teeth and associated tissues as further 
defined in paragraph (e) of this section.
    (22) Provider. A dentist, dental hygienist, or certified and 
licensed anesthetist as specified in paragraph (f) of this section. This 
term, when used in relation to OCONUS service area providers, may 
include other recognized professions authorized to furnish care under 
laws of that particular country.
    (23) Restorative services. Restoration of teeth including those 
procedures commonly described as amalgam restorations, resin 
restorations, pin retention, and stainless steel crowns for primary 
teeth as further defined in paragraph (e) of this section.
    (24) Sealants. A material designed for application on specified 
teeth to seal the surface irregularities to prevent ingress of oral 
fluids, food, and debris in order to prevent tooth decay.
    (c) Eligibility and enrollment--(1) General. 10 U.S.C. 1076a, 
1072(2)(A), (D), or (I), 1072(6), 10143 and 10144 set forth

[[Page 255]]

those persons who are eligible for voluntary enrollment in the TDP. A 
determination that a person is eligible for voluntary enrollment does 
not automatically entitle that person to benefit payments. The person 
must be enrolled in accordance with the provisions set forth in this 
section and meet any additional eligibility requirements in this part in 
order for dental benefits to be extended.
    (2) Eligibility--(i) Persons eligible. Eligibility for the TDP is 
continuous in situations where the sponsor or member changes status 
between any of these eligible categories and there is no break in 
service or transfer to a non-eligible status.
    (A) A person who bears one of the following relationships to an 
active duty member (under a call or order that does not specify a period 
of thirty (30) days or less) or a member of the Selected Reserve (as 
specified in 10 U.S.C. 10143) or Individual Ready Reserve (as specified 
in 10 U.S.C. 10144):
    (1) Spouse. A lawful husband or wife, regardless of whether or not 
dependent upon the active duty, Selected Reserve or Individual Ready 
Reserve member.
    (2) Child. To be eligible, the child must be unmarried and meet the 
requirements set forth in Sec. Sec. 199.3(b)(2)(iv)(A) and 
199.3(b)(2)(iv)(C).
    (B) A member of the Selected Reserve of the Ready Reserve (as 
specified in 10 U.S.C. 10143).
    (C) A member of the Individual Ready Reserve of the Ready Reserve 
(as specified in 10 U.S.C. 10144(b)) who is subject to being ordered to 
active duty involuntarily in accordance with 10 U.S.C. 12304.
    (D) All other members of the Individual Ready Reserve of the Ready 
Reserve (as specified in 10 U.S.C. 10144(a)).
    (ii) Determination of eligibility status and evidence of 
eligibility--(A) Eligibility determination responsibility of the 
Uniformed Services. Determination of a person's eligibility for the TDP 
is the responsibility of the member's Uniformed Service. For the purpose 
of program integrity, the appropriate Uniformed Service shall, upon 
request of the Director, OCHAMPUS, or designee, review the eligibility 
of a specified person when there is reason to question the eligibility 
status. In such cases, a report on the result of the review and any 
action taken will be submitted to the Director, OCHAMPUS, or designee.
    (B) Procedures for determination of eligibility. Uniformed Service 
identification cards do not distinguish eligibility for the TDP. 
Procedures for the determination of eligibility are identified in Sec. 
199.3(f)(2), except that Uniformed Service identification cards do not 
provide evidence of eligibility for the TDP. Although OCHAMPUS and the 
dental plan contractor must make determinations concerning a member or 
dependent's eligibility in order to ensure proper enrollment and proper 
disbursement of appropriated funds, ultimate responsibility for 
resolving a member or dependent's eligibility rests with the Uniformed 
Services.
    (C) Evidence of eligibility required. Eligibility and enrollment in 
the TDP will be verified through the DEERS. Eligibility and enrollment 
information established and maintained in the DEERS file is the only 
acceptable evidence of TDP eligibility and enrollment. It is the 
responsibility of the active duty, Selected Reserve or Individual Ready 
Reserve member or TDP beneficiary, parent, or legal representative, when 
appropriate, to provide adequate evidence for entry into the DEERS file 
to establish eligibility for the TDP, and to ensure that all changes in 
status that may affect eligibility are reported immediately to the 
appropriate Uniformed Service for action. Ineligibility for benefits is 
presumed in the absence of prescribed eligibility evidence in the DEERS 
file.
    (3) Enrollment--(i) Previous plans--(A) Basic Active Duty Dependents 
Dental Benefit Plan. The Basic Active Duty Dependents Dental Plan was 
effective from August 1, 1987, up to the date of implementation of the 
Expanded Active Duty Dependents Dental Benefit Plan. The Basic Active 
Duty Dependents Dental Benefit Plan terminated upon implementation of 
the expanded plan.
    (B) Expanded Active Duty Dependents Dental Benefit Plan. The 
Expanded Active Duty Dependents Dental Benefit Plan (also known as the 
TRICARE Family Member Dental Plan) was effective from August 1, 1993, up 
to the date of implementation of the TDP.

[[Page 256]]

The Expanded Active Duty Dependents Dental Benefit Plan terminates upon 
implementation of the TDP.
    (ii) TRICARE Dental Program (TDP)--(A) Election of coverage. (1) 
Except as provided in paragraph (c)(3)(ii)(A)(2) of this section, active 
duty, Selected Reserve and Individual Ready Reserve service members may 
voluntarily elect to enroll their eligible dependents and members of the 
Selected Reserve and Individual Ready Reserve may voluntarily elect to 
enroll themselves following implementation of the TDP. In order to 
obtain TDP coverage, written or telephonic election by the active duty, 
Selected Reserve or Individual Ready Reserve member must be made and 
will be accomplished by submission or telephonic completion of an 
application to the dental plan contractor. This election can also be 
accomplished via electronic means.
    (2) Eligible dependents of active duty members enrolled in the 
Expanded Active Duty Dependents Dental Benefit Plan at the time of 
implementation of the TDP will automatically be enrolled in the TDP. 
Eligible members of the Selected Reserve enrolled in the TRICARE 
Selected Reserve Dental Program at the time of implementation of the TDP 
will automatically be enrolled in the TDP. No election to enroll in the 
TDP will be required by the active duty or Selected Reserve member.
    (B) Premiums--(1) Enrollment will be by either single or family 
premium as defined as follows:
    (i) Single premium. One (1) covered eligible dependent or one (1) 
covered eligible Selected Reserve or Individual Ready Reserve member.
    (ii) Family premium. Two (2) or more covered eligible dependents. 
Under the family premium, all eligible dependents of the active duty, 
Selected Reserve or Individual Ready Reserve member are enrolled.
    (2) Exceptions. (i) An active duty, Selected Reserve or Individual 
Ready Reserve member may elect to enroll only those eligible dependents 
residing in one (1) location when the active duty, Selected Reserve or 
Individual Ready Reserve member has eligible dependents residing in two 
or more geographically separate locations (e.g., children living with a 
divorced spouse; a child attending college).
    (ii) Instances where a dependent of an active duty member requires a 
hospital or special treatment environment (due to a medical, physical 
handicap, or mental condition) for dental care otherwise covered by the 
TDP, the dependent may be excluded from TDP enrollment and may continue 
to receive care from a military treatment facility.
    (iii) A member of the Selected Reserve or Individual Ready Reserve 
may enroll separately from his or her eligible dependents. A member of 
the Selected Reserve or Individual Ready Reserve does not have to be 
enrolled in order for his or her eligible dependents to enroll under the 
TDP.
    (C) Enrollment period--(1) General. Enrollment of eligible 
dependents or members is for a period of one (1) year followed by month-
to-month enrollment as long as the active duty, Selected Reserve or 
Individual Ready Reserve member chooses to continue enrollment. Active 
duty members may enroll their eligible dependents and eligible members 
of the Selected Reserve or Individual Ready Reserve may enroll 
themselves or their eligible dependents in the TDP provided there is an 
intent to remain on active duty or as a member of the Selected Reserve 
or Individual Ready Reserve (or any combination thereof without a break 
in service or transfer to a non-eligible status) for a period of not 
less than one (1) year by the service member and their parent Uniformed 
Service. Beneficiaries enrolled in the TDP must remain enrolled for a 
minimum period of one (1) year unless one of the conditions for 
disenrollment specified in paragraph (c)(3)(ii)(E) of this section is 
met.
    (2) Special enrollment period for Reserve component members ordered 
to active duty in support of contingency operations. The mandatory 
twelve (12) month enrollment period does not apply to Reserve component 
members ordered to active duty (other than for training) in support of a 
contingency operation as designated by the Secretary of Defense. 
Affected Reserve component members may enroll in the TDP only if their 
orders specify that they are ordered to active duty in support of a 
contingency

[[Page 257]]

operation, as defined by 10 U.S.C., for a period of thirty-one (31) days 
or more. An affected Reserve component member must elect to enroll in 
the TDP and complete the enrollment application within thirty (30) days 
following entry on active duty or within sixty (60) days following 
implementation of the TDP. Following enrollment, beneficiaries must 
remain enrolled, with the member paying premiums, until the end of the 
member's active duty period in support of the contingency operation or 
twelve (12) months, whichever occurs first unless one of the conditions 
for disenrollment specified in paragraph (c)(3)(ii)(E) of this section 
is met.
    (3) Continuation of enrollment from Expanded Active Duty Dependents 
Dental Benefit Plan. Beneficiaries enrolled in the Expanded Active Duty 
Dependents Dental Benefit Plan at the time when TDP coverage begins must 
complete their two (2) year enrollment period established under this 
former plan except if one of the conditions for disenrollment specified 
in paragraph (c)(3)(ii)(E) of this section is met. Once this original 
two (2) year enrollment period is met, the active duty member may 
continue TDP enrollment on a month-to-month basis. A new one (1) year 
enrollment period will only be incurred if the active duty member 
disenrolls and attempts to reenroll in the TDP at a later date.
    (4) Continuation of enrollment from TRICARE Selected Reserve Dental 
Program. Beneficiaries enrolled in the TRICARE Selected Reserve Dental 
Program at the time when TDP coverage begins must complete their one (1) 
year enrollment period established under this former program except if 
one of the conditions for disenrollment specified in paragraph 
(c)(3)(ii)(E) of this section is met. Once this original one (1) year 
enrollment period is met, the Selected Reserve member may continue TDP 
enrollment on a month-to-month basis. A new one (1) year enrollment 
period will only be incurred if the Selected Reserve member disenrolls 
and attempts to reenroll in the TDP at a later date.
    (D) Beginning dates of eligibility. The beginning date of 
eligibility for TDP benefits is the first day of the month following the 
month in which the election of enrollment is completed, signed, and the 
enrollment and premium is received by the dental plan contractor, 
subject to a predetermined and publicized dental plan contractor monthly 
cut-off date, except that the date of eligibility shall not be earlier 
than the first day of the month in which the TDP is implemented. This 
includes any changes between single and family member premium coverage 
and coverage of newly eligible or enrolled dependents or members.
    (E) Changes in and termination of enrollment--(1) Changes in status 
of active duty, Selected Reserve or Individual Ready Reserve member. 
When the active duty, Selected Reserve or Individual Ready Reserve 
member is separated, discharged, retired, transferred to the Standby or 
Retired Reserve, his or her enrolled dependents and/or the enrolled 
Selected Reserve or Individual Ready Reserve member lose eligibility and 
enrollment as of 11:59 p.m. on the last day of the month in which the 
change in status takes place. When the Selected Reserve or Individual 
Ready Reserve member is ordered to active duty for a period of thirty-
one (31) days or more without a break in service, the member loses their 
eligibility and is disenrolled, if they were previously enrolled; 
however, their enrolled dependents maintain their eligibility and 
previous enrollment subject to eligibility, enrollment and disenrollment 
provisions described in this section and in the TDP contract. When the 
previously enrolled active duty member is transferred back to the 
Selected Reserve or Individual Ready Reserve without a break in service, 
the member regains eligibility and is reenrolled; however, their 
enrolled dependents maintain their eligibility and previous enrollment 
subject to eligibility, enrollment and disenrollment provisions 
described in this section and in the TDP contract. Eligible dependents 
of an active duty, Selected Reserve or Individual Ready Reserve member 
serving a sentence of confinement in conjunction with a sentence of 
punitive discharge are still eligible for the TDP until such time as the 
active duty, Selected Reserve or Individual Ready Reserve member's 
discharge is executed.

[[Page 258]]

    (2) Continuation of eligibility for dependents of service members 
who die while on active duty or while a member of the Ready Reserve 
(i.e., Selected Reserve or Individual Ready Reserve). Eligible 
dependents of active duty members while on active duty for a period of 
thirty-one (31) days or more and eligible dependents of Ready Reserve 
(i.e., Selected Reserve or Individual Ready Reserve members), as 
specified in 10 U.S.C. 10143 and 10144(b) respectively, if on the date 
of the death of the member, the dependent is enrolled in the TDP, or if 
not enrolled by reason of a discontinuance of a former enrollment under 
paragraphs (c)(4)(ii) and (c)(4)(iii) of this section shall be eligible 
for continued enrollment in the TDP for up to three (3) years from the 
date of the member's death. This 3-year period of continued enrollment 
also applies to dependents of active duty members who died within the 
year prior to the beginning of the TDP while the dependents were 
enrolled in the TFMDP. This continued enrollment is not contingent on 
the Selected Reserve or Individual Ready Reserve member's own enrollment 
in the TDP. During the three-year period of continuous enrollment, the 
government will pay both the Government and the beneficiary's portion of 
the premium share.
    (3) Changes in status of dependent--(i) Divorce. A spouse separated 
from an active duty, Selected Reserve or Individual Ready Reserve member 
by a final divorce decree loses all eligibility based on his or her 
former marital relationship as of 11:59 p.m. of the last day of the 
month in which the divorce becomes final. The eligibility of the active 
duty, Selected Reserve or Individual Ready Reserve member's own children 
(including adopted and eligible illegitimate children) is unaffected by 
the divorce. An unadopted stepchild, however, loses eligibility with the 
termination of the marriage, also as of 11:59 p.m. of the last day of 
the month in which the divorce becomes final.
    (ii) Annulment. A spouse whose marriage to an active duty, Selected 
Reserve or Individual Ready Reserve member is dissolved by annulment 
loses eligibility as of 11:59 p.m. of the last day of the month in which 
the court grants the annulment order. The fact that the annulment 
legally declares the entire marriage void from its inception does not 
affect the termination date of eligibility. When there are children, the 
eligibility of the active duty, Selected Reserve or Individual Ready 
Reserve member's own children (including adopted and eligible 
illegitimate children) is unaffected by the annulment. An unadopted 
stepchild, however, loses eligibility with the annulment of the 
marriage, also as of 11:59 p.m. of the last day of the month in which 
the court grants the annulment order.
    (iii) Adoption. A child of an active duty, Selected Reserve or 
Individual Ready Reserve member who is adopted by a person, other than a 
person whose dependents are eligible for TDP benefits while the active 
duty, Selected Reserve or Individual Ready Reserve member is living, 
thereby severing the legal relationship between the child and the active 
duty, Selected Reserve or Individual Ready Reserve member, loses 
eligibility as of 11:59 p.m. of the last day of the month in which the 
adoption becomes final.
    (iv) Marriage of child. A child of an active duty, Selected Reserve 
or Individual Ready Reserve member who marries a person whose dependents 
are not eligible for the TDP, loses eligibility as of 11:59 p.m. on the 
last day of the month in which the marriage takes place. However, should 
the marriage be terminated by death, divorce, or annulment before the 
child is twenty-one (21) years old, the child again become eligible for 
enrollment as a dependent as of 12:00 a.m. of the first day of the month 
following the month in which the occurrence takes place that terminates 
the marriage and continues up to age twenty-one (21) if the child does 
not remarry before that time. If the marriage terminates after the 
child's 21st birthday, there is no reinstatement of eligibility.
    (v) Disabling illness or injury of child age 21 or 22 who has 
eligibility based on his or her student status. A child twenty-one (21) 
or twenty-two (22) years old who is pursuing a full-time course of 
higher education and who, either during the school year or between 
semesters, suffers a disabling illness or injury with resultant 
inability to resume

[[Page 259]]

attendance at the institution remains eligible for the TDP for six (6) 
months after the disability is removed or until the student passes his 
or her 23rd birthday, whichever occurs first. However, if recovery 
occurs before the 23rd birthday and there is resumption of a full-time 
course of higher education, the TDP can be continued until the 23rd 
birthday. The normal vacation periods during an established school year 
do not change the eligibility status of a dependent child twenty-one 
(21) or twenty-two (22) years old in full-time student status. Unless an 
incapacitating condition existed before, and at the time of, a dependent 
child's 21st birthday, a dependent child twenty-one (21) or twenty-two 
(22) years old in student status does not have eligibility related to 
mental or physical incapacity as described in Sec. 
199.3(b)(2)(iv)(C)(2).
    (4) Other--(i) Disenrollment because of no eligible beneficiaries. 
When an active duty, Selected Reserve or Individual Ready Reserve member 
ceases to have any eligible beneficiaries, enrollment is terminated for 
those enrolled dependents.
    (ii) Option to disenroll as a result of a change in active duty 
station. When an active duty member transfers with enrolled dependents 
to a duty station where space-available dental care for the enrolled 
dependents is readily available at the local Uniformed Service dental 
treatment facility, the active duty member may elect, within ninety (90) 
calendar days of the transfer, to disenroll their dependents from the 
TDP. If the active duty member is later transferred to a duty station 
where dental care for the dependents is not available in the local 
Uniformed Service dental treatment facility, the active duty member may 
reenroll their eligible dependents in the TDP provided the member, as of 
the date of reenrollment, otherwise meets the requirements for 
enrollment, including the intent to remain on active duty for a period 
of not less than one (1) year. This disenrollment provision does not 
apply to enrolled dependents of members of the Selected Reserve or 
Individual Ready Reserve or to enrolled members of the Selected Reserve 
or Individual Ready Reserve.
    (iii) Option to disenroll due to transfer to OCONUS service area. 
When an enrolled dependent of an active duty, Selected Reserve or 
Individual Ready Reserve member or an enrolled Selected Reserve or 
Individual Ready Reserve member relocates to locations within the OCONUS 
service area, the active duty, Selected Reserve or Individual Ready 
Reserve member may elect, within ninety (90) calendar days of the 
relocation, to disenroll their dependents from the TDP, or in the case 
of enrolled members of the Selected Reserve or Individual Ready Reserve, 
to disenroll themselves from the TDP. The active duty, Selected Reserve 
or Individual Ready Reserve member may reenroll their eligible 
dependents, or in the case of members of the Selected Reserve or 
Individual Ready Reserve, may reenroll themselves in the TDP provided 
the member, as of the date of reenrollment, otherwise meets the 
requirements for enrollment, including the intent to remain on active 
duty or as a member of the Selected Reserve or Individual Ready Reserve 
(or any combination thereof without a break in service or transfer to a 
non-eligible status) for a period of not less than one (1) year.
    (iv) Option to disenroll after an initial one (1) year enrollment. 
When a dependent's enrollment under an active duty, Selected Reserve or 
Individual Ready Reserve member or a Selected Reserve or Individual 
Ready Reserve member's own enrollment has been in effect for a 
continuous period of one (1) year, the active duty, Selected Reserve or 
Individual Ready Reserve member may disenroll their dependents, or in 
the case of enrolled members of the Selected Reserve or Individual Ready 
Reserve may disenroll themselves at any time following procedures as set 
up by the dental plan contractor. Subsequent to the disenrollment, the 
active duty, Selected Reserve or Individual Ready Reserve member may 
reenroll their eligible dependents, or in the case of members of the 
Selected Reserve or Individual Ready Reserve may reenroll themselves, 
for another minimum period of one (1) year. If, during any one (1) year 
enrollment period, the active duty, Selected Reserve or Individual Ready 
Reserve member disenrolls their

[[Page 260]]

dependents, or in the case of members of the Selected Reserve or 
Individual Ready Reserve disenrolls themselves, for reasons other than 
those listed in this paragraph (c)(3)(ii)(E) or fails to make premium 
payments, dependents enrolled under the active duty, Selected Reserve or 
Individual Ready Reserve member, or enrolled members of the Selected 
Reserve and Individual Ready Reserve, will be subject to a lock-out 
period of twelve (12) months. Following this period of time, active 
duty, Selected Reserve or Individual Ready Reserve members will be able 
to reenroll their eligible dependents, or members of the Selected 
Reserve or Individual Ready Reserve will be able to reenroll themselves, 
if they so choose. The twelve (12) month lock-out period applies to 
enrolled dependents of a Reserve component member who disenrolls for 
reasons other than those listed in this paragraph (c)(3)(ii)(E) or fails 
to make premium payments after the member has enrolled pursuant to 
paragraph (c)(3)(ii)(C) of this section.
    (d) Premium sharing--(1) General. Active duty, Selected Reserve or 
Individual Ready Reserve members enrolling their eligible dependents, or 
members of the Selected Reserve or Individual Ready Reserve enrolling 
themselves, in the TDP shall be required to pay all or a portion of the 
premium cost depending on their status.
    (i) Members required to pay a portion of the premium cost. This 
premium category includes active duty members (under a call or order to 
active duty that does not specify a period of thirty (30) days or less) 
on behalf of their enrolled dependents. It also includes members of the 
Selected Reserve (as specified in 10 U.S.C. 10143) and the Individual 
Ready Reserve (as specified in 10 U.S.C. 10144(b)) enrolled on their own 
behalf.
    (ii) Members required to pay the full premium cost. This premium 
category includes members of the Selected Reserve (as specified in 10 
U.S.C. 10143), and the Individual Ready Reserve (as specified in 10 
U.S.C. 10144), on behalf of their enrolled dependents. It also includes 
members of the Individual Ready Reserve (as specified in 10 U.S.C. 
10144(a)) enrolled on their own behalf.
    (2) Proportion of premium share. The proportion of premium share to 
be paid by the active duty, Selected Reserve and Individual Reserve 
member pursuant to paragraph (d)(1)(i) of this section is established by 
the ASD(HA), or designee, at not more than forty (40) percent of the 
total premium. The proportion of premium share to be paid by the 
Selected Reserve and Individual Reserve member pursuant to paragraph 
(d)(1)(ii) of this section is established by the ASD(HA), or designee, 
at one hundred (100) percent of the total premium.
    (3) Provision for increases in active duty, Selected Reserve and 
Individual Ready Reserve member's premium share. (i) Although previously 
capped at $20 per month, the law has been amended to authorize the cap 
on active duty, Selected Reserve and Individual Ready Reserve member's 
premiums pursuant to paragraph (d)(1)(i) of this section to rise, 
effective as of January 1 of each year, by the percent equal to the 
lesser of:
    (A) The percent by which the rates of basic pay of members of the 
Uniformed Services are increased on such date; or
    (B) The sum of one-half percent and the percent computed under 5 
U.S.C. 5303(a) for the increase in rates of basic pay for statutory pay 
systems for pay periods beginning on or after such date.
    (ii) Under the legislation authorizing an increase in the monthly 
premium cap, the methodology for determining the active duty, Selected 
Reserve and Individual Ready Reserve member's TDP premium pursuant to 
paragraph (d)(1)(i) of this section will be applied as if the 
methodology had been in continuous use since December 31, 1993.
    (4) Reduction of premium share for enlisted members. For enlisted 
members in pay grades E-1 through E-4, the ASD(HA) or designee, may 
reduce the monthly premium these active duty, Selected Reserve and 
Individual Ready Reserve members pay pursuant to paragraph (d)(1)(i) of 
this section.
    (5) Reduction of cost-shares for enlisted members. For enlisted 
members in pay grades E-1 through E-4, the ASD(HA) or designee, may 
reduce the cost-shares that active duty, Selected Reserve and Individual 
Ready Reserve members pay on behalf of their enrolled dependents

[[Page 261]]

and that members of the Selected Reserve and Individual Ready Reserve 
pay on their own behalf for selected benefits as specified in paragraph 
(e)(3)(i) of this section.
    (6) Premium payment method. The active duty, Selected Reserve and 
Individual Ready Reserve member's premium share may be deducted from the 
active duty, Selected Reserve or Individual Ready Reserve member's basic 
pay or compensation paid under 37 U.S.C. 206, if sufficient pay is 
available. For members who are otherwise eligible for TDP benefits and 
who do not receive such pay and dependents who are otherwise eligible 
for TDP benefits and whose sponsors do not receive such pay, or if 
insufficient pay is available, the premium payment may be collected 
pursuant to procedures established by the Director, OCHAMPUS, or 
designee.
    (7) Annual notification of premium rates. TDP premium rates will be 
determined as part of the competitive contracting process. Information 
on the premium rates will be widely distributed by the dental plan 
contractor and the Government.
    (e) Plan benefits--(1) General.--(i) Scope of benefits. The TDP 
provides coverage for diagnostic and preventive services, sealants, 
restorative services, endodontics, periodontics, prosthodontics, 
orthodontics and oral and maxillofacial surgery.
    (ii) Authority to act for the plan. The authority to make benefit 
determinations and authorize plan payments under the TDP rests primarily 
with the insurance, service plan, or prepayment dental plan contractor, 
subject to compliance with Federal law and regulation and Government 
contract provisions. The Director, OCHAMPUS, or designee, provides 
required benefit policy decisions resulting from changes in Federal law 
and regulation and appeal decisions. No other persons or agents (such as 
dentists or Uniformed Services HBAs) have such authority.
    (iii) Dental benefits brochure.--(A) Content. The Director, 
OCHAMPUS, or designee, shall establish a comprehensive dental benefits 
brochure explaining the benefits of the plan in common lay terminology. 
The brochure shall include the limitations and exclusions and other 
benefit determination rules for administering the benefits in accordance 
with the law and this part. The brochure shall include the rules for 
adjudication and payment of claims, appealable issues, and appeal 
procedures in sufficient detail to serve as a common basis for 
interpretation and understanding of the rules by providers, 
beneficiaries, claims examiners, correspondence specialists, employees 
and representatives of other Government bodies, HBAs, and other 
interested parties. Any conflict, which may occur between the dental 
benefits brochure and law or regulation, shall be resolved in favor of 
law and regulation.
    (B) Distribution. The dental benefits brochure will be available 
through the dental plan contractor and will be distributed with the 
assistance of the Uniformed Services HBAs and major personnel centers at 
Uniformed Service installations and headquarters to all members 
enrolling themselves or their eligible dependents.
    (iv) Alternative course of treatment policy. The Director, OCHAMPUS, 
or designee, may establish, in accordance with generally accepted dental 
benefit practices, an alternative course of treatment policy which 
provides reimbursement in instances where the dentist and beneficiary 
select a more expensive service, procedure, or course of treatment than 
is customarily provided. The alternative course of treatment policy must 
meet following conditions:
    (A) The service, procedure, or course of treatment must be 
consistent with sound professional standards of dental practice for the 
dental condition concerned.
    (B) The service, procedure, or course of treatment must be a 
generally accepted alternative for a service or procedure covered by the 
TDP for the dental condition.
    (C) Payment for the alternative service or procedure may not exceed 
the lower of the prevailing limits for the alternative procedure, the 
prevailing limits or dental plan contractor's scheduled allowance for 
the otherwise authorized benefit procedure for which the alternative is 
substituted, or the actual charge for the alternative procedure.

[[Page 262]]

    (2) Benefits. The following benefits are defined (subject to the 
TDP's exclusions, limitations, and benefit determination rules approved 
by OCHAMPUS) using the American Dental Association's Council on Dental 
Care Program's Code on Dental Procedures and Nomenclature. The Director, 
OCHAMPUS, or designee, may modify these services, to the extent 
determined appropriate based on developments in common dental care 
practices and standard dental insurance programs.
    (i) Diagnostic and preventive services. Benefits may be extended for 
those dental services described as oral examination, diagnostic, and 
preventive services defined as traditional prophylaxis (i.e., scaling 
deposits from teeth, polishing teeth, and topical application of 
fluoride to teeth) when performed directly by dentists and dental 
hygienists as authorized under paragraph (f) of this section. These 
include the following categories of service:
    (A) Diagnostic services. (1) Clinical oral examinations.
    (2) Radiographs and diagnostic imaging.
    (3) Tests and laboratory examinations.
    (B) Preventive services. (1) Dental prophylaxis.
    (2) Topical fluoride treatment (office procedure).
    (3) Other preventive services.
    (4) Space maintenance (passive appliances).
    (ii) General services and services ``by report''. The following 
categories of services are authorized when performed directly by 
dentists or dental hygienists, as authorized under paragraph (f) of this 
section, only in unusual circumstances requiring justification of 
exceptional conditions directly related to otherwise authorized 
procedures. Use of the procedures may not result in the fragmentation of 
services normally included in a single procedure. The dental plan 
contractor may recognize a ``by report'' condition by providing 
additional allowance to the primary covered procedure instead of 
recognizing or permitting a distinct billing for the ``by report'' 
service. These include the following categories of general services:
    (A) Unclassified treatment.
    (B) Anesthesia.
    (C) Professional consultation.
    (D) Professional visits.
    (E) Drugs.
    (F) Miscellaneous services.
    (iii) Restorative services. Benefits may be extended for restorative 
services when performed directly by dentists or dental hygienists, or 
under orders and supervision by dentists, as authorized under paragraph 
(f) of this section. These include the following categories of 
restorative services:
    (A) Amalgam restorations.
    (B) Resin restorations.
    (C) Inlay and onlay restorations.
    (D) Crowns.
    (E) Other restorative services.
    (iv) Endodontic services. Benefits may be extended for those dental 
services involved in treatment of diseases and injuries affecting the 
dental pulp, tooth root, and periapical tissue when performed directly 
by dentists as authorized under paragraph (f) of this section. These 
include the following categories of endodontic services:
    (A) Pulp capping.
    (B) Pulpotomy and pulpectomy.
    (C) Endodontic therapy.
    (D) Apexification and recalcification procedures.
    (E) Apicoectomy and periradicular services.
    (F) Other endodontic procedures.
    (v) Periodontic services. Benefits may be extended for those dental 
services involved in prevention and treatment of diseases affecting the 
supporting structures of the teeth to include periodontal prophylaxis, 
gingivectomy or gingivoplasty, gingival curettage, etc., when performed 
directly by dentists as authorized under paragraph (f) of this section. 
These include the following categories of periodontic services:
    (A) Surgical services.
    (B) Periodontal services.
    (C) Other periodontal services.
    (vi) Prosthodontic services. Benefits may be extended for those 
dental services involved in fabrication, insertion adjustment, 
relinement, and repair of artificial teeth and associated tissues to 
include removable complete and partial dentures, fixed crowns and 
bridges when performed directly by dentists as authorized under 
paragraph (f)(4) of

[[Page 263]]

this section. These include the following categories of prosthodontic 
services:
    (A) Prosthodontics (removable).
    (1) Complete and partial dentures.
    (2) Adjustments to dentures.
    (3) Repairs to complete and partial dentures.
    (4) Denture rebase procedures.
    (5) Denture reline procedures.
    (6) Other removable prosthetic services.
    (B) Prosthodontics (fixed).
    (1) Fixed partial denture pontics.
    (2) Fixed partial denture retainers.
    (3) Other partial denture services.
    (vii) Orthodontic services. Benefits may be extended for the 
supervision, guidance, and correction of growing or mature dentofacial 
structures, including those conditions that require movement of teeth or 
correction of malrelationships and malformations through the use of 
orthodontic procedures and devices when performed directly by dentists 
as authorized under paragraph (f) of this section to include in-process 
orthodontics. These include the following categories of orthodontic 
services:
    (A) Limited orthodontic treatment.
    (B) Minor treatment to control harmful habits.
    (C) Interceptive orthodontic treatment.
    (D) Comprehensive orthodontic treatment.
    (E) Other orthodontic services.
    (viii) Oral and maxillofacial surgery services. Benefits may be 
extended for basic surgical procedure of the extraction, reimplantation, 
stabilization and repositioning of teeth, alveoloplasties, incision and 
drainage of abscesses, suturing of wounds, biopsies, etc., when 
performed directly by dentists as authorized under paragraph (f) of this 
section. These include the following categories of oral and 
maxillofacial surgery services:
    (A) Extractions.
    (B) Surgical extractions.
    (C) Other surgical procedures.
    (D) Alveoloplasty--surgical preparation of ridge for denture.
    (E) Surgical incision.
    (F) Repair of traumatic wounds.
    (G) Complicated suturing.
    (H) Other repair procedures.
    (ix) Exclusion of adjunctive dental care. Adjunctive dental care 
benefits are excluded under the TDP. For further information on 
adjunctive dental care benefits under TRICARE/CHAMPUS, see Sec. 
199.4(e)(10).
    (x) Benefit limitations and exclusions. The Director, OCHAMPUS, or 
designee, may establish such exclusions and limitations as are 
consistent with those established by dental insurance and prepayment 
plans to control utilization and quality of care for the services and 
items covered by the TDP.
    (xi) Limitation on reduction of benefits. If a reduction in benefits 
is planned, the Secretary of Defense, or designee, may not reduce TDP 
benefits without notifying the appropriate Congressional committees. If 
a reduction is approved, the Secretary of Defense, or designee, must 
wait one (1) year from the date of notice before a benefit reduction can 
be implemented.
    (3) Cost-shares, liability and maximum coverage.--(i) Cost-shares. 
The following table lists maximum active duty, Selected Reserve and 
Individual Ready Reserve member and dependent cost-shares for covered 
services for participating and nonparticipating providers of care (see 
paragraph (f)(6) of this section for additional active duty, Selected 
Reserve and Individual Ready Reserve costs). These are percentages of 
the dental plan contractor's determined allowable amount that the active 
duty, Selected Reserve and Individual Ready Reserve member or 
beneficiary must pay to these providers. For care received in the OCONUS 
service area, the ASD(HA), or designee, may pay certain cost-shares and 
other portions of a provider's billed charge for enrolled dependents of 
active duty members (under a call or order that does not specify a 
period of thirty (30) days or less), and for members of the Selected 
Reserve (as specified in 10 U.S.C. 10143) and Individual Ready Reserve 
(as specified in 10 U.S.C. 10144(b)) enrolled on their own behalf.

                              [In percent]
------------------------------------------------------------------------
                                                 Cost-share
                                                  for pay     Cost-share
               Covered services                 grades E-1,    for all
                                                  E-2, E-3    other pay
                                                  and E-4       grades
------------------------------------------------------------------------
Diagnostic....................................            0            0
Preventive, except Sealants...................            0            0

[[Page 264]]

 
Emergency Services............................            0            0
Sealants......................................           20           20
Professional Consultations....................           20           20
Professional Visits...........................           20           20
Post Surgical Services........................           20           20
Basic Restorative (example: amalgams, resins,            20           20
 stainless steel crowns)......................
Endodontic....................................           30           40
Periodontic...................................           30           40
Oral and Maxilllofacial Surgery...............           30           40
General Anesthesia............................           40           40
Intravenous Sedation..........................           50           50
Other Restorative (example: crowns, onlays,              50           50
 casts).......................................
Prosthodontics................................           50           50
Medications...................................           50           50
Orthodontic...................................           50           50
Miscellaneous.................................           50           50
------------------------------------------------------------------------

    (ii) Dental plan contractor liability. When more than twenty-five 
(25) percent or more than two hundred (200) enrollees in a specific five 
(5) digit zip code area are unable to obtain a periodic or initial (non-
emergency) dentistry appointment with a network provider within twenty-
one (21) calendar days and within thirty-five (35) miles of the 
enrollee's place of residence, then the TRICARE Management Activity 
(TMA) will designate that area as ``non-compliant with the access 
standard.'' Once so designated, the dental program contractor will 
reimburse the beneficiary, or active duty, Selected Reserve or 
Individual Ready Reserve member, or the nonparticipating provider 
selected by enrollees in that area (or a subset of the area or nearby 
zip codes in other five (5) digit zip code areas as determined by TMA) 
at the level of the provider's usual fees less the applicable enrollee 
cost-share, if any. TMA shall determine when such area becomes compliant 
with the access standards. This access standard and associated liability 
does not apply to care received in the OCONUS service area.
    (iii) Maximum coverage amounts. Beneficiaries are subject to an 
annual maximum coverage amount for non-orthodontic dental benefits and a 
lifetime maximum coverage amount for orthodontics as established by the 
ASD (HA) or designee.
    (f) Authorized providers--(1) General. Beneficiaries may seek 
covered services from any provider who is fully licensed and approved to 
provide dental care or covered anesthesia benefits in the state where 
the provider is located. This includes licensed dental hygienists, 
practicing within the scope of their licensure, subject to any 
restrictions a state licensure or legislative body imposes regarding 
their status as independent providers of care.
    (2) Authorized provider status does not guarantee payment of 
benefits. The fact that a provider is ``authorized'' is not to be 
construed to mean that the TDP will automatically pay a claim for 
services or supplies provided by such a provider. The Director, 
OCHAMPUS, or designee, also must determine if the patient is an eligible 
beneficiary, whether the services or supplies billed are authorized and 
medically necessary, and whether any of the authorized exclusions of 
otherwise qualified providers presented in this section apply.
    (3) Utilization review and quality assurance. Services and supplies 
furnished by providers of care shall be subject to utilization review 
and quality assurance standards, norms, and criteria established under 
the TDP. Utilization review and quality assurance assessments shall be 
performed under the TDP consistent with the nature and level of benefits 
of the plan, and shall include analysis of the data and findings by the 
dental plan contractor from other dental accounts.
    (4) Provider required. In order to be considered benefits, all 
services and supplies shall be rendered by, prescribed by, or furnished 
at the direction of, or on the order of a TDP authorized provider 
practicing within the scope of his or her license.
    (5) Participating provider. An authorized provider may elect to 
participate for all TDP beneficiaries and accept the fee or charge 
determinations as established and made known to the provider by the 
dental plan contractor. The fee or charge determinations are binding 
upon the provider in accordance with the dental plan contractor's 
procedures for participation. The authorized provider may not 
participate

[[Page 265]]

on a claim-by-claim basis. The participating provider must agree to 
accept, within one (1) day of a request for appointment, beneficiaries 
in need of emergency palliative treatment. Payment to the participating 
provider is based on the lower of the actual charge or the dental plan 
contractor's determination of the allowable charge; however, payments to 
participating providers shall be in accordance with the methodology 
specified in paragraph (g)(2)(ii) of this section. Payment is made 
directly to the participating provider, and the participating provider 
may only charge the beneficiary the percent cost-share of the dental 
plan contractor's allowable charge for those benefit categories as 
specified in paragraph (e) of this section, in addition to the full 
charges for any services not authorized as benefits.
    (6) Nonparticipating provider. An authorized provider may elect to 
not participate for all TDP beneficiaries and request the beneficiary or 
active duty, Selected Reserve or Individual Ready Reserve member to pay 
any amount of the provider's billed charge in excess of the dental plan 
contractor's determination of allowable charges (to include the 
appropriate cost-share). Neither the Government nor the dental plan 
contractor shall have any responsibility for any amounts over the 
allowable charges as determined by the dental plan contractor, except 
where the dental plan contractor is unable to identify a participating 
provider of care within thirty-five (35) miles of the beneficiary's 
place of residence with appointment availability within twenty-one (21) 
calendar days. In such instances of the nonavailability of a 
participating provider and in accordance with the provisions of the 
dental contract, the nonparticipating provider located within thirty-
five (35) miles of the beneficiary's place of residence shall be paid 
his or her usual fees (either by the beneficiary or the dental plan 
contractor if the beneficiary elected assignment of benefits), less the 
percent cost-share as specified in paragraph (e)(3)(i) of this section.
    (i) Assignment of benefits. A nonparticipating provider may accept 
assignment of benefits for claims (for beneficiaries certifying their 
willingness to make such assignment of benefits) by filing the claims 
completed with the assistance of the beneficiary or active duty, 
Selected Reserve or Individual Ready Reserve member for direct payment 
by the dental plan contractor to the provider.
    (ii) No assignment of benefits. A nonparticipating provider for all 
beneficiaries may request that the beneficiary or active duty, Selected 
Reserve or Individual Ready Reserve member file the claim directly with 
the dental plan contractor, making arrangements with the beneficiary or 
active duty, Selected Reserve or Individual Ready Reserve member for 
direct payment by the beneficiary or active duty, Selected Reserve or 
Individual Ready Reserve member.
    (7) Alternative delivery system--(i) General. Alternative delivery 
systems may be established by the Director, OCHAMPUS, or designee, as 
authorized providers. Only dentists, dental hygienists and licensed 
anesthetists shall be authorized to provide or direct the provision of 
authorized services and supplies in an approved alternative delivery 
system.
    (ii) Defined. An alternative delivery system may be any approved 
arrangement for a preferred provider organization, capitation plan, 
dental health maintenance or clinic organization, or other contracted 
arrangement which is approved by OCHAMPUS in accordance with 
requirements and guidelines.
    (iii) Elective or exclusive arrangement. Alternative delivery 
systems may be established by contract or other arrangement on either an 
elective or exclusive basis for beneficiary selection of participating 
and authorized providers in accordance with contractual requirements and 
guidelines.
    (iv) Provider election of participation. Otherwise authorized 
providers must be provided with the opportunity of applying for 
participation in an alternative delivery system and of achieving 
participation status based on reasonable criteria for timeliness of 
application, quality of care, cost containment, geographic location, 
patient availability, and acceptance of reimbursement allowance.
    (v) Limitation on authorized providers. Where exclusive alternative 
delivery

[[Page 266]]

systems are established, only providers participating in the alternative 
delivery system are authorized providers of care. In such instances, the 
TDP shall continue to pay beneficiary claims for services rendered by 
otherwise authorized providers in accordance with established rules for 
reimbursement of nonparticipating providers where the beneficiary has 
established a patient relationship with the nonparticipating provider 
prior to the TDP's proposal to subcontract with the alternative delivery 
system.
    (vi) Charge agreements. Where the alternative delivery system 
employs a discounted fee-for-service reimbursement methodology or 
schedule of charges or rates which includes all or most dental services 
and procedures recognized by the American Dental Association's Council 
on Dental Care Program's Code on Dental Procedures and Nomenclature, the 
discounts or schedule of charges or rates for all dental services and 
procedures shall be extended by its participating providers to 
beneficiaries of the TDP as an incentive for beneficiary participation 
in the alternative delivery system.
    (g) Benefit payment--(1) General. TDP benefits payments are made 
either directly to the provider or to the beneficiary or active duty, 
Selected Reserve or Individual Ready Reserve member, depending on the 
manner in which the claim is submitted or the terms of the subcontract 
of an alternative delivery system with the dental plan contractor.
    (2) Benefit payment. Beneficiaries are not required to utilize 
participating providers. For beneficiaries who do use these 
participating providers, however, these providers shall not balance bill 
any amount in excess of the maximum payment allowed by the dental plan 
contractor for covered services. Beneficiaries using nonparticipating 
providers may be balance-billed amounts in excess of the dental plan 
contractor's determination of allowable charges. The following general 
requirements for the TDP benefit payment methodology shall be met, 
subject to modifications and exceptions approved by the Director, 
OCHAMPUS, or designee:
    (i) Nonparticipating providers (or the Beneficiaries or active duty, 
Selected Reserve or Individual Ready Reserve members for unassigned 
claims) shall be reimbursed at the equivalent of not less than the 50th 
percentile of prevailing charges made for similar services in the same 
locality (region) or state, or the provider's actual charge, whichever 
is lower, subject to the exception listed in paragraph (e)(3)(ii) of 
this section, less any cost-share amount due for authorized services.
    (ii) Participating providers shall be reimbursed at the equivalent 
of a percentile of prevailing charges sufficiently above the 50th 
percentile of prevailing charges made for similar services in the same 
locality (region) or state as to constitute a significant financial 
incentive for participation, or the provider's actual charge, whichever 
is lower, less any cost-share amount due for authorized services.
    (3) Fraud, abuse, and conflict of interest. The provisions of Sec. 
199.9 shall apply except for Sec. 199.9(e). All references to ``CHAMPUS 
contractors'', ``CHAMPUS beneficiaries'' and ``CHAMPUS providers'' in 
Sec. 199.9 shall be construed to mean the ``dental plan contractor'', 
``TDP beneficiaries'' and ``TPD providers'' respectively for the 
purposes of this section. Examples of fraud include situations in which 
ineligible persons not enrolled in the TDP obtain care and file claims 
for benefits under the name and identification of a beneficiary; or when 
providers submit claims for services and supplies not rendered to 
Beneficiaries; or when a participating provider bills the beneficiary 
for amounts over the dental plan contractor's determination of allowable 
charges; or when a provider fails to collect the specified patient cost-
share amount.
    (h) Appeal and hearing procedures. The provisions of Sec. 199.10 
shall apply except where noted in this section. All references to 
``CHAMPUS contractors'', ``CHAMPUS beneficiaries'', ``CHAMPUS 
participating providers'' and ``CHAMPUS Explanation of Benefits'' in 
Sec. 199.10 shall be construed to mean the ``dental plan contractor'',

[[Page 267]]

``TDP beneficiaries'', ``TDP participating providers'' and ``Dental 
Explanation of Benefits or DEOB'' respectively for the purposes of this 
section. References to ``OCHAMPUSEUR'' in Sec. 199.10 are not 
applicable to the TDP or this section.
    (1) General. See Sec. 199.10(a).
    (i) Initial determination--(A) Notice of initial determination and 
right to appeal. See Sec. 199.10(a)(1)(i).
    (B) Effect of initial determination. See Sec. 199.10(a)(1)(ii).
    (ii) Participation in an appeal. Participation in an appeal is 
limited to any party to the initial determination, including OCHAMPUS, 
the dental plan contractor, and authorized representatives of the 
parties. Any party to the initial determination, except OCHAMPUS and the 
dental plan contractor, may appeal an adverse determination. The 
appealing party is the party who actually files the appeal.
    (A) Parties to the initial determination. See Sec. Sec. 
199.10(a)(2)(i) and 199.10(a)(2)(i) (A), (B), (C) and (E). In addition, 
a third party other than the dental plan contractor, such as an 
insurance company, is not a party to the initial determination and is 
not entitled to appeal, even though it may have an indirect interest in 
the initial determination.
    (B) Representative. See Sec. 199.10(a)(2)(ii).
    (iii) Burden of proof. See Sec. 199.10(a)(3).
    (iv) Evidence in appeal and hearing cases. See Sec. 199.10(a)(4).
    (v) Late filing. If a request for reconsideration, formal review, or 
hearing is filed after the time permitted in this section, written 
notice shall be issued denying the request. Late filing may be permitted 
only if the appealing party reasonably can demonstrate to the 
satisfaction of the dental plan contractor, or the Director, OCHAMPUS, 
or designee, that timely filing of the request was not feasible due to 
extraordinary circumstances over which the appealing party had no 
practical control. Each request for an exception to the filing 
requirement will be considered on its own merits. The decision of the 
Director, OCHAMPUS, or a designee, on the request for an exception to 
the filing requirement shall be final.
    (vi) Appealable issue. See Sec. Sec. 199.10(a)(6), 199.10(a)(6)(i), 
199.10(a)(6)(iv), including Sec. Sec. 199.10(a)(6)(iv) (A) and (C), and 
199.10(a)(6)(v) for an explanation and examples of non-appealable 
issues. Other examples of issues that are not appealable under this 
section include:
    (A) The amount of the dental plan contractor-determined allowable 
charge since the methodology constitutes a limitation on benefits under 
the provisions of this section.
    (B) Certain other issues on the basis that the authority for the 
initial determination is not vested in OCHAMPUS. Such issues include but 
are not limited to the following examples:
    (1) A determination of a person's enrollment in the TDP is the 
responsibility of the dental plan contractor and ultimate responsibility 
for resolving a beneficiary's enrollment rests with the dental plan 
contractor. Accordingly, a disputed question of fact concerning a 
beneficiary's enrollment will not be considered an appealable issue 
under the provisions of this section, but shall be resolved in 
accordance with paragraph (c) of this section and the dental plan 
contractor's enrollment policies and procedures.
    (2) Decisions relating to the issuance of a nonavailability 
statement (NAS) in each case are made by the Uniformed Services. 
Disputes over the need for an NAS or a refusal to issue an NAS are not 
appealable under this section. The one exception is when a dispute 
arises over whether the facts of the case demonstrate a dental emergency 
for which an NAS is not required. Denial of payment in this one 
situation is an appealable issue.
    (3) Any decision or action on the part of the dental plan contractor 
to include a provider in their network or to designate a provider as 
participating is not appealable under this section. Similarly, any 
decision or action on the part of the dental plan contractor to exclude 
a provider from their network or to deny participating provider status 
is not appealable under this section.
    (vii) Amount in dispute--(A) General. An amount in dispute is 
required for an adverse determination to be appealed under the 
provisions of this section, except as set forth or further explained in 
Sec. 199.10(a)(7)(ii), (iii) and (iv).

[[Page 268]]

    (B) Calculated amount. The amount in dispute is calculated as the 
amount of money the dental plan contractor would pay if the services 
involved in the dispute were determined to be authorized benefits of the 
TDP. Examples of amounts of money that are excluded by this section from 
payments for authorized benefits include, but are not limited to:
    (1) Amounts in excess of the dental plan contractor's--determined 
allowable charge.
    (2) The beneficiary's cost-share amounts.
    (3) Amounts that the beneficiary, or parent, guardian, or other 
responsible person has no legal obligation to pay.
    (4) Amounts excluded under the provisions of Sec. 199.8 of this 
part.
    (viii) Levels of appeal. See Sec. 199.10(a)(8)(i). Initial 
determinations involving the sanctioning (exclusion, suspension, or 
termination) of TDP providers shall be appealed directly to the hearing 
level.
    (ix) Appeal decision. See Sec. 199.10(a)(9).
    (2) Reconsideration. See Sec. 199.10(b).
    (3) Formal review. See Sec. 199.10(c).
    (4) Hearing--(i) General. See Sec. Sec. 1.99.10(d) and 199.10(d)(1) 
through (d)(5) and (d0(7) through (d)(12) for information on the hearing 
process.
    (ii) Authority of the hearing officer. The hearing officer, in 
exercising the authority to conduct a hearing under this part, will be 
bound by 10 U.S.C., chapter 55, and this part. The hearing officer in 
addressing substantive, appealable issues shall be bound by the dental 
benefits brochure applicable for the date(s) of service, policies, 
procedures, instructions and other guidelines issued by the ASD(HA), or 
a designee, or by the Director, OCHAMPUS, or a designee, in effect for 
the period in which the matter in dispute arose. A hearing officer may 
not establish or amend the dental benefits brochure, policy, procedures, 
instructions, or guidelines. However, the hearing officer may recommend 
reconsideration of the policy, procedures, instructions or guidelines by 
the ASD (HA), or a designee, when the final decisions is issued in the 
case.
    (5) Final decision. See Sec. Sec. 199.10(e)(1) and 199.10(e)(1)(i) 
for information on final decisions in the appeal and hearing process, 
with the exception that no recommended decision shall be referred for 
review by ASD(HA).

[66 FR 12860, Mar. 1, 2001; 66 FR 16400, Mar. 26, 2001, as amended at 68 
FR 65174, Nov. 19, 2003; 69 FR 55359, Sept. 14, 2004]



Sec. 199.14  Provider reimbursement methods.

    (a) Hospitals. The CHAMPUS-determined allowable cost for 
reimbursement of a hospital shall be determined on the basis of one of 
the following methodologies.
    (1) CHAMPUS Diagnosis Related Group (DRG)-based payment system. 
Under the CHAMPUS DRG-based payment system, payment for the operating 
costs of inpatient hospital services furnished by hospitals subject to 
the system is made on the basis of prospectively-determined rates and 
applied on a per discharge basis using DRGs. Payments under this system 
will include a differentiation for urban (using large urban and other 
urban areas) and rural hospitals and an adjustment for area wage 
differences and indirect medical education costs. Additional payments 
will be made for capital costs, direct medical education costs, and 
outlier cases.
    (i) General--(A) DRGs used. The CHAMPUS DRG-based payment system 
will use the same DRGs used in the most recently available grouper for 
the Medicare Prospective Payment System, except as necessary to 
recognize distinct characteristics of CHAMPUS beneficiaries and as 
described in instructions issued by the Director, OCHAMPUS.
    (B) Assignment of discharges to DRGs.
    (1) The classification of a particular discharge shall be based on 
the patient's age, sex, principal diagnosis (that is, the diagnosis 
established, after study, to be chiefly responsible for causing the 
patient's admission to the hospital), secondary diagnoses, procedures 
performed and discharge status. In addition, for neonatal cases (other 
than normal newborns) the classification shall also account for 
birthweight, surgery and the presence of multiple, major and other 
neonatal problems, and shall incorporate annual updates to these 
classification features.

[[Page 269]]

    (2) Each discharge shall be assigned to only one DRG regardless of 
the number of conditions treated or services furnished during the 
patient's stay.
    (C) Basis of payment--(1) Hospital billing. Under the CHAMPUS DRG-
based payment system, hospitals are required to submit claims (including 
itemized charges) in accordance with Sec. 199.7(b). The CHAMPUS fiscal 
intermediary will assign the appropriate DRG to the claim based on the 
information contained in the claim. Any request from a hospital for 
reclassification of a claim to a higher weighted DRG must be submitted, 
within 60 days from the date of the initial payment, in a manner 
prescribed by the Director, OCHAMPUS.
    (2) Payment on a per discharge basis. Under the CHAMPUS DRG-based 
payment system, hospitals are paid a predetermined amount per discharge 
for inpatient hospital services furnished to CHAMPUS beneficiaries.
    (3) Claims priced as of date of admission. Except for interim claims 
submitted for qualifying outlier cases, all claims reimbursed under the 
CHAMPUS DRG-based payment system are to be priced as of the date of 
admission, regardless of when the claim is submitted.
    (4) Payment in full. The DRG-based amount paid for inpatient 
hospital services is the total CHAMPUS payment for the inpatient 
operating costs (as described in paragraph (a)(1)(i)(C)(5) of this 
section) incurred in furnishing services covered by the CHAMPUS. The 
full prospective payment amount is payable for each stay during which 
there is at least one covered day of care, except as provided in 
paragraph (a)(1)(iii)(E)(1)(i)(A) of this section.
    (5) Inpatient operating costs. The CHAMPUS DRG-based payment system 
provides a payment amount for inpatient operating costs, including:
    (i) Operating costs for routine services, such as the costs of room, 
board, and routine nursing services;
    (ii) Operating costs for ancillary services, such as hospital 
radiology and laboratory services (other than physicians' services) 
furnished to hospital inpatients;
    (iii) Special care unit operating costs; and
    (iv) Malpractice insurance costs related to services furnished to 
inpatients.
    (6) Discharges and transfers.
    (i) Discharges. A hospital inpatient is discharged when:
    (A) The patient is formally released from the hospital (release of 
the patient to another hospital as described in paragraph 
(a)(1)(i)(C)(6)(ii) of this section, or a leave of absence from the 
hospital, will not be recognized as a discharge for the purpose of 
determining payment under the CHAMPUS DRG-based payment system);
    (B) The patient dies in the hospital; or
    (C) The patient is transferred from the care of a hospital included 
under the CHAMPUS DRG-based payment system to a hospital or unit that is 
excluded from the prospective payment system.
    (ii) Transfers. Except as provided under paragraph 
(a)(1)(i)(C)(6)(i) of this section, a discharge of a hospital inpatient 
is not counted for purposes of the CHAMPUS DRG-based payment system when 
the patient is transferred:
    (A) From one inpatient area or unit of the hospital to another area 
or unit of the same hospital;
    (B) From the care of a hospital included under the CHAMPUS DRG-based 
payment system to the care of another hospital paid under this system;
    (C) From the care of a hospital included under the CHAMPUS DRG-based 
payment system to the care of another hospital that is excluded from the 
CHAMPUS DRG-based payment system because of participation in a statewide 
cost control program which is exempt from the CHAMPUS DRG-based payment 
system under paragraph (a)(1)(ii)(A) of this section; or
    (D) From the care of a hospital included under the CHAMPUS DRG-based 
payment system to the care of a uniformed services treatment facility.
    (iii) Payment in full to the discharging hospital. The hospital 
discharging an inpatient shall be paid in full under the CHAMPUS DRG-
based payment system.
    (iv) Payment to a hospital transferring an inpatient to another 
hospital. If a hospital subject to the CHAMPUS DRG-

[[Page 270]]

based payment system transfers an inpatient to another such hospital, 
the transferring hospital shall be paid a per diem rate (except that in 
neonatal cases, other than normal newborns, the hospital will be paid at 
125 percent of that per diem rate), as determined under instructions 
issued by TSO, for each day of the patient's stay in that hospital, not 
to exceed the DRG-based payment that would have been paid if the patient 
had been discharged to another setting. For admissions occurring on or 
after October 1, 1995, the transferring hospital shall be paid twice the 
per diem rate for the first day of any transfer stay, and the per diem 
amount for each subsequent day, up to the limit described in this 
paragraph.
    (v) Additional payments to transferring hospitals. A transferring 
hospital may qualify for an additional payment for extraordinary cases 
that meet the criteria for long-stay or cost outliers.
    (D) DRG system updates. The CHAMPUS DRG-based payment system is 
modeled on the Medicare Prospective Payment System (PPS) and uses 
annually updated items and numbers from the Medicare PPS as provided for 
in this part and in instructions issued by the Director, OCHAMPUS. The 
effective date of these items and numbers shall correspond to that under 
the Medicare PPS except where distinctions are made in this part.
    (ii) Applicability of the DRG system.
    (A) Areas affected. The CHAMPUS DRG-based payment system shall apply 
to hospitals' services in the fifty states, the District of Columbia, 
and Puerto Rico, except that any state which has implemented a separate 
DRG-based payment system or similar payment system in order to control 
costs and is exempt from the Medicare Prospective Payment System may be 
exempt from the CHAMPUS DRG-based payment system if it requests 
exemption in writing, and provided payment under such system does not 
exceed payment which would otherwise be made under the CHAMPUS DRG-based 
payment system.
    (B) Services subject to the DRG-based payment system. All normally 
covered inpatient hospital services furnished to CHAMPUS beneficiaries 
by hospitals are subject to the CHAMPUS DRG-based payment system.
    (C) Services exempt from the DRG-based payment system. The following 
hospital services, even when provided in a hospital subject to the 
CHAMPUS DRG-based payment system, are exempt from the CHAMPUS DRG-based 
payment system. The services in paragraphs (a)(1)(ii)(C)(1) through 
(a)(1)(ii)(C)(4) and (a)(1)(ii)(C)(7) through (a)(1)(ii)(C)(9) of this 
section shall be reimbursed under the procedures in paragraph (a)(3) of 
this section, and the services in paragraphs (a)(1)(ii)(C)(5) and 
(a)(1)(ii)(C)(6) of this section shall be reimbursed under the 
procedures in paragraph (g) of this section.
    (1) Services provided by hospitals exempt from the DRG-based payment 
system.
    (2) All services related to solid organ acquisition for CHAMPUS 
covered transplants by CHAMPUS-authorized transplantation centers.
    (3) All services related to heart and liver transplantation for 
admissions prior to October 1, 1998, which would otherwise be paid under 
DRG 103 and 480, respectively.
    (4) All services related to CHAMPUS covered solid organ 
transplantations for which there is no DRG assignment.
    (5) All professional services provided by hospital-based physicians.
    (6) All services provided by nurse anesthetists.
    (7) All services related to discharges involving pediatric bone 
marrow transplants (patient under 18 at admission).
    (8) All services related to discharges involving children who have 
been determined to be HIV seropositive (patient under 18 at admission).
    (9) All services related to discharges involving pediatric cystic 
fibrosis (patient under 18 at admission).
    (10) For admissions occurring on or after October 1, 1990, and 
before October 1, 1994, and for discharges occurring on or after October 
1, 1997, the costs of blood clotting factor for hemophilia inpatients. 
An additional payment shall be made to a hospital for each unit of blood 
clotting factor furnished to a CHAMPUS inpatient who is hemophiliac in 
accordance with the amounts

[[Page 271]]

established under the Medicare Prospective Payment System (42 CFR 
412.115).
    (D) Hospitals subject to the CHAMPUS DRG-based payment system. All 
hospitals within the fifty states, the District of Columbia, and Puerto 
Rico which are certified to provide services to CHAMPUS beneficiaries 
are subject to the DRG-based payment system except for the following 
hospitals or hospital units which are exempt.
    (1) Psychiatric hospitals. A psychiatric hospital which is exempt 
from the Medicare Prospective Payment System is also exempt from the 
CHAMPUS DRG-based payment system. In order for a psychiatric hospital 
which does not participate in Medicare to be exempt from the CHAMPUS 
DRG-based payment system, it must meet the same criteria (as determined 
by the Director, OCHAMPUS, or a designee) as required for exemption from 
the Medicare Prospective Payment System as contained in 42 CFR 412.23.
    (2) Rehabilitation hospitals. A rehabilitation hospital which is 
exempt from the Medicare Prospective Payment System is also exempt from 
the CHAMPUS DRG-based payment system. In order for a rehabilitation 
hospital which does not participate in Medicare to be exempt from the 
CHAMPUS DRG-based payment system, it must meet the same criteria (as 
determined by the Director, OCHAMPUS, or a designee) as required for 
exemption from the Medicare Prospective Payment System as contained in 
42 CFR 412.23.
    (3) Psychiatric and rehabilitation units (distinct parts). A 
psychiatric or rehabilitation unit which is exempt from the Medicare 
prospective payment system is also exempt from the CHAMPUS DRG-based 
payment system. In order for a distinct unit which does not participate 
in Medicare to be exempt from the CHAMPUS DRG-based payment system, it 
must meet the same criteria (as determined by the Director, OCHAMPUS, or 
a designee) as required for exemption from the Medicare Prospective 
Payment System as contained in 42 CFR 412.23.
    (4) Long-term hospitals. A long-term hospital which is exempt from 
the Medicare prospective payment system is also exempt from the CHAMPUS 
DRG-based payment system. In order for a long-term hospital which does 
not participate in Medicare to be exempt from the CHAMPUS DRG-based 
payment system, it must meet the same criteria (as determined by the 
Director, TSO, or a designee) as required for exemption from the 
Medicare Prospective Payment System as contained in Sec. 412.23 of 
Title 42 CFR.
    (5) Hospitals within hospitals. A hospital within a hospital which 
is exempt from the Medicare prospective payment system is also exempt 
from the CHAMPUS DRG-based payment system. In order for a hospital 
within a hospital which does not participate in Medicare to be exempt 
from the CHAMPUS DRG-based payment system, it must meet the same 
criteria (as determined by the Director, TSO, or a designee) as required 
for exemption from the Medicare Prospective Payment System as contained 
in 42 CFR 412.22 and the criteria for one or more of the excluded 
hospital classifications described in Sec. 412.23 of Title 42 CFR.
    (6) Sole community hospitals. Any hospital which has qualified for 
special treatment under the Medicare prospective payment system as a 
sole community hospital and has not given up that classification is 
exempt from the CHAMPUS DRG-based payment system. (See subpart G of 42 
CFR part 412.)
    (7) Christian Science sanitoriums. All Christian Science sanitoriums 
(as defined in paragraph (b)(4)(viii) of Sec. 199.6) are exempt from 
the CHAMPUS DRG-based payment system.
    (8) Cancer hospitals. Any hospital which qualifies as a cancer 
hospital under the Medicare standards and has elected to be exempt from 
the Medicare prospective payment system is exempt from the CHAMPUS DRG-
based payment system. (See 42 CFR 412.94.)
    (9) Hospitals outside the 50 states, the District of Columbia, and 
Puerto Rico. A hospital is excluded from the CHAMPUS DRG-based payment 
system if it is not located in one of the fifty States, the District of 
Colubmia, or Puerto Rico.
    (E) Hospitals which do not participate in Medicare. It is not 
required that a hospital be a Medicare-participating provider in order 
to be an authorized

[[Page 272]]

CHAMPUS provider. However, any hospital which is subject to the CHAMPUS 
DRG-based payment system and which otherwise meets CHAMPUS requirements 
but which is not a Medicare-participating provider (having completed a 
form HCFA-1514, Hospital Request for Certification in the Medicare/
Medicaid Program and a form HCFA-1561, Health Insurance Benefit 
Agreement) must complete a participation agreement with OCHAMPUS. By 
completing the participation agreement, the hospital agrees to 
participate on all CHAMPUS inpatient claims and to accept the CHAMPUS-
determined allowable amount as payment in full for these claims. Any 
hospital which does not participate in Medicare and does not complete a 
participation agreement with OCHAMPUS will not be authorized to provide 
services to CHAMPUS beneficiaries.
    (F) Substance Use Disorder Rehabilitation facilities. With 
admissions on or after July 1, 1995, substance use disorder 
rehabilitation facilities, authorized under Sec. 199.6(b)(4)(xiv), are 
subject to the DRG-based payment system.
    (iii) Determination of payment amounts. The actual payment for an 
individual claim under the CHAMPUS DRG-based payment system is 
calculated by multiplying the appropriate adjusted standardized amount 
(adjusted to account for area wage differences using the wage indexes 
used in the Medicare program) by a weighting factor specific to each 
DRG.
    (A) Calculation of DRG weights.
    (1) Grouping of charges. All discharge records in the database shall 
be grouped by DRG.
    (2) Remove DRGs 469 and 470. Records from DRGs 469 and 470 shall be 
removed from the database.
    (3) Indirect medical education standardization. To standardize the 
charges for the cost effects of indirect medical education factors, each 
teaching hospital's charges will be divided by 1.0 plus the following 
ratio on a hospital-specific basis:
[GRAPHIC] [TIFF OMITTED] TC15NO91.042

    (4) Wage level standardization. To standardize the charge records 
for area wage differences, each charge record will be divided into 
labor-related and nonlabor-related portions, and the labor-related 
portion shall be divided by the most recently available Medicare wage 
index for the area. The labor-related and nonlabor-related portions will 
then be added together.
    (5) Elimination of statistical outliers. All unusually high or low 
charges shall be removed from the database.
    (6) Calculation of DRG average charge. After the standardization for 
indirect medical education, and area wage differences, an average charge 
for each DRG shall be computed by summing charges in a DRG and dividing 
that sum by the number of records in the DRG.
    (7) Calculation of national average charge per discharge. A national 
average charge per discharge shall be calculated by summing all charges 
and dividing that sum by the total number of records from all DRG 
categories.
    (8) DRG relative weights. DRG relative weights shall be calculated 
for each DRG category by dividing each DRG average charge by the 
national average charge.
    (B) Empty and low-volume DRGs. For any DRG with less than ten (10) 
occurrences in the CHAMPUS database, the Director, TSO, or designee, has 
the authority to consider alternative methods for estimating CHAMPUS 
weights in these low-volume DRG categories.
    (C) Updating DRG weights. The CHAMPUS DRG weights shall be updated 
or adjusted as follows:
    (1) DRG weights shall be recalculated annually using CHAMPUS charge 
data and the methodology described in paragraph (a)(1)(iii)(A) of this 
section.
    (2) When a new DRG is created, CHAMPUS will, if practical, calculate

[[Page 273]]

a weight for it using an appropriate charge sample (if available) and 
the methodology described in paragraph (a)(1)(iii)(A) of this section.
    (3) In the case of any other change under Medicare to an existing 
DRG weight (such as in connection with technology changes), CHAMPUS 
shall adjust its weight for that DRG in a manner comparable to the 
change made by Medicare.
    (D) Calculation of the adjusted standardized amounts. The following 
procedures shall be followed in calculating the CHAMPUS adjusted 
standardized amounts.
    (1) Differentiate large urban and other area charges. All charges in 
the database shall be sorted into large urban and other area groups 
(using the same definitions for these categories used in the Medicare 
program.The following procedures will be applied to each group.
    (2) Indirect medical education standardization. To standardize the 
charges for the cost effects of indirect medical education factors, each 
teaching hospital's charges will be divided by 1.0 plus the following 
ratio on a hospital-specific basis:
[GRAPHIC] [TIFF OMITTED] TC15NO91.043

    (3) Wage level standardization. To standardize the charge records 
for area wage differnces, each charge record will be divided into labor-
related and nonlabor-related portions, and the labor-related portion 
shall be divided by the most recently available Medicare wage index for 
the area. The labor-related and nonlabor-related portions will then be 
added together.
    (4) Apply the cost to charge ratio. Each charge is to be reduced to 
a representative cost by using the Medicare cost to charge ratio. This 
amount shall be increased by 1 percentage point in order to reimburse 
hospitals for bad debt expenses attributable to CHAMPUS beneficiaries.
    (5) Preliminary base year standardized amount. A preliminary base 
year standardized amount shall be calculated by summing all costs in the 
database applicable to the large urban or other area group and dividing 
by the total number of discharges in the respective group.
    (6) Update for inflation. The preliminary base year standardized 
amounts shall be updated using an annual update factor equal to 1.07 to 
produce fiscal year 1988 preliminary standardized amounts. Therefore, 
any development of a new standardized amount will use an inflation 
factor equal to the hospital market basket index used by the Health Care 
Financing Administration in their Prospective Payment System.
    (7) The preliminary standardized amounts, updated for inflation, 
shall be divided by a system standardization factor so that total DRG 
outlays, given the database distribution across hospitals and diagnosis, 
are equal to the total charges reduced to costs.
    (8) Labor and nonlabor portions of the adjusted standardized 
amounts. The adjusted standardized amounts shall be divided into labor 
and nonlabor portions in accordance with the Medicare division of labor 
and nonlabor portions.
    (E) Adjustments to the DRG-based payments amounts. The following 
adjustments to the DRG-based amounts (the weight multiplied by the 
adjusted standardized amount) will be made.
    (1) Outliers. The DRG-based payment to a hospital shall be adjusted 
for atypical cases. These outliers are those cases that have either an 
unusually short length-of-stay or extremely long length-of-stay or that 
involve extraordinarily high costs when compared to most discharges 
classified in the same DRG. Cases which qualify as both a length-of-stay 
outlier and a cost outlier shall be paid at the rate which results in 
the greater payment.
    (i) Length-of-stay outliers. Length-of-stay outliers shall be 
identified and

[[Page 274]]

paid by the fiscal intermediary when the claims are processed.
    (A) Short-stay outliers. Any discharge with a length-of-stay (LOS) 
less than 1.94 standard deviations from the DRG's arithmetic LOS shall 
be classified as a short-stay outlier. Short-stay outliers shall be 
reimbursed at 200 percent of the per diem rate for the DRG for each 
covered day of the hospital stay, not to exceed the DRG amount. The per 
diem rate shall equal the DRG amount divided by the arithmetic mean 
length-of-stay for the DRG.
    (B) Long-stay outliers. Any discharge (except for neonatal services 
and services in children's hospitals) which has a length-of-stay (LOS) 
exceeding a threshold established in accordance with the criteria used 
for the Medicare Prospective Payment System as contained in 42 CFR 
412.82 shall be classified as a long-stay outlier. Any discharge for 
neonatal services or for services in a children's hospital which has a 
LOS exceeding the lesser of 1.94 standard deviations or 17 days from the 
DRG's arithmetic mean LOS also shall be classified as a long-stay 
outlier. Long-stay outliers shall be reimbursed the DRG-based amount 
plus a percentage (as established for the Medicare Prospective Payment 
System) of the per diem rate for the DRG for each covered day of care 
beyond the long-stay outlier threshold. The per diem rate shall equal 
the DRG amount divided by the arithmetic mean LOS for the DRG. For 
admissions on or after October 1, 1997, the long stay outlier has been 
eliminated for all cases except children's hospitals and neonates. For 
admissions on or after October 1, 1998, the long stay outlier has been 
eliminated for children's hospitals and neonates.
    (ii) Cost outliers. Additional payment for cost outliers shall be 
made only upon request by the hospital.
    (A) Cost outliers except those in children's hospitals or for 
neonatal services. Any discharge which has standardized costs that 
exceed a threshold established in accordance with the criteria used for 
the Medicare Prospective Payment System as contained in 42 CFR 412.84 
shall qualify as a cost outlier. The standardized costs shall be 
calculated by multiplying the total charges by the factor described in 
paragraph (a)(1)(iii)(D)(4) of this section and adjusting this amount 
for indirect medical education costs. Cost outliers shall be reimbursed 
the DRG-based amount plus a percentage (as established for the Medicare 
Prospective Payment System) of all costs exceeding the threshold. 
Effective with admissions occurring on or after October 1, 1997, the 
standardized costs are no longer adjusted for indirect medical education 
costs.
    (B) Cost outliers in children's hospitals for neonatal services. Any 
discharge for services in a children's hospital or for neonatal services 
which has standardized costs that exceed a threshold of the greater of 
two times the DRG-based amount or $13,500 shall qualify as a cost 
outlier. The standardized costs shall be calculated by multiplying the 
total charges by the factor described in paragraph (a)(1) (iii) (D) (4) 
of this section (adjusted to include average capital and direct medical 
education costs) and adjusting this amount for indirect medical 
education costs. Cost outliers for services in children's hospitals and 
for neonatal services shall be reimbursed the DRG-based amount plus a 
percentage (as established for the Medicare Prospective Payment System) 
of all costs exceeding the threshold. Effective with admissions 
occurring on or after October 1, 1998, standardized costs are no longer 
adjusted for indirect medical education costs. In addition, CHAMPUS will 
calculate the outlier payments that would have occurred at each of the 
59 Children's hospitals under the FY99 outlier policy for all cases that 
would have been outliers under the FY94 policies using the most accurate 
data available in September 1998. A ratio will be calculated which 
equals the level of outlier payments that would have been made under the 
FY94 outlier policies and the outlier payments that would be made if the 
FY99 outlier policies had applied to each of these potential outlier 
cases for these hospitals. The ratio will be calculated across all 
outlier claims for the 59 hospitals and will not be hospital specific. 
The ratio will be used to increase cost outlier payments in FY 1999 and 
FY 2000, unless the hospital has a negotiated

[[Page 275]]

agreement with a managed care support contractor which would affect this 
payment. For hospitals with managed care support agreements which affect 
these payments, CHAMPUS will apply these payments if the increased 
payments would be consistent with the agreements. In FY 2000 the ratio 
of outlier payments (long stay and cost) that would have occurred under 
the FY 94 policy and actual cost outlier payments made under the FY 99 
policy will be recalculated. If the ratio has changed significantly, the 
ratio will be revised for use in FY 2001 and thereafter. In FY 2002, the 
actual cost outlier cases in FY 2000 and 2001 will be reexamined. The 
ratio of outlier payments that would have occurred under the FY94 policy 
and the actual cost outlier payments made under the FY 2000 and FY 2001 
policies. If the ratio has changed significantly, the ratio will be 
revised for use in FY 2003.
    (C) Cost outliers for burn cases. All cost outliers for DRGs related 
to burn cases shall be reimbursed the DRG-based amount plus a percentage 
(as established for the Medicare Prospective Payment System) of all 
costs exceeding the threshold. The standardized costs and thresholds for 
these cases shall be calculated in accordance with Sec. 
199.14(a)(1)(iii)(E)(1)(ii)(A) and Sec. 199.14(a)(1)(iii)(E)(1)(ii)(B).
    (2) Wage adjustment. CHAMPUS will adjust the labor portion of the 
standardized amounts according to the hospital's area wage index.
    (3) Indirect medical education adjustment. The wage adjusted DRG 
payment will also be multiplied by 1.0 plus the hospital's indirect 
medical education ratio.
    (4) Children's hospital differential. With respect to claims from 
children's hospitals, the appropriate adjusted standardized amount shall 
also be adjusted by a children's hospital differential.
    (i) Qualifying children's hospitals. Hospitals qualifying for the 
children's hospital differential are hospitals that are exempt from the 
Medicare Prospective Payment System, or, in the case of hospitals that 
do not participate in Medicare, that meet the same criteria (as 
determined by the Director, OCHAMPUS, or a designee) as required for 
exemption from the Medicare Prospective Payment System as contained in 
42 CFR 412.23.
    (ii) Calculation of differential. The differential shall be equal to 
the difference between a specially calculated children's hospital 
adjusted standardized amount and the adjusted standardized amount for 
fiscal year 1988. The specially calculated children's hospital adjusted 
standardized amount shall be calculated in the same manner as set forth 
in Sec. 199.14(a)(1)(iii)(D), except that:
    (A) The base period shall be fiscal year 1988 and shall represent 
total estimated charges for discharges that occurred during fiscal year 
1988.
    (B) No cost to charge ratio shall be applied.
    (C) Capital costs and direct medical education costs will be 
included in the calculation.
    (D) The factor used to update the database for inflation to produce 
the fiscal year 1988 base period amount shall be the applicable Medicare 
inpatient hospital market basket rate.
    (iii) Transition rule. Until March 1, 1992, separate differentials 
shall be used for each higher volume children's hospital (individually) 
and for all other children's hospitals (in the aggregate). For this 
purpose, a higher volume hospital is a hospital that had 50 or more 
CHAMPUS discharges in fiscal year 1988.
    (iv) Hold harmless provision. At such time as the weights initially 
assigned to neonatal DRGs are recalibrated based on sufficient volume of 
CHAMPUS claims records, children's hospital differentials shall be 
recalculated and appropriate retrospective and prospective adjustments 
shall be made. To the extent practicable, the recalculation shall also 
include reestimated values of other factors (including but not limited 
to direct education and capital costs and indirect education factors) 
for which more accurate data became available.
    (v) No update for inflation. The children's hospital differential, 
calculated (and later recalculated under the hold harmless provision) 
for the base period of fiscal year 1988, shall not be updated for 
subsequent fiscal years.

[[Page 276]]

    (vi) Administrative corrections. In connection with determinations 
pursuant to paragraph (a)(1)(iii) (E)(4)(iii) of this section, any 
children's hospital that believes OCHAMPUS erroneously failed to 
classify the hospital as a high volume hospital or incorrectly 
calculated (in the case of a high volume hospital) the hospital's 
differential may obtain administrative corrections by submitting 
appropriate documentation to the Director, OCHAMPUS (or a designee).
    (F) Updating the adjusted standardized amounts. Beginning in FY 
1989, the adjusted standardized amounts will be updated by the Medicare 
annual update factor, unless the adjusted standardized amounts are 
recalculated.
    (G) Annual cost pass-throughs.
    (1) Capital costs. When requested in writing by a hospital, CHAMPUS 
shall reimburse the hospital its share of actual capital costs as 
reported annually to the CHAMPUS fiscal intermediary. Payment for 
capital costs shall be made annually based on the ratio of CHAMPUS 
inpatient days for those beneficiaries subject to the CHAMPUS DRG-based 
payment system to total inpatient days applied to the hospital's total 
allowable capital costs. Reductions in payments for capital costs which 
are required under Medicare shall also be applied to payments for 
capital costs under CHAMPUS.
    (i) Costs included as capital costs. Allowable capital costs are 
those specified in Medicare Regulation Sec. 413.130, as modified by 
Sec. 412.72.
    (ii) Services, facilities, or supplies provided by supplying 
organizations. If services, facilities, or supplies are provided to the 
hospital by a supplying organization related to the hospital within the 
meaning of Medicare Regulation Sec. 413.17, then the hospital must 
include in its capital-related costs, the capital-related costs of the 
supplying organization. However, if the supplying organization is not 
related to the provider within the meaning of Sec. 413.17, no part of 
the change to the provider may be considered a capital-related cost 
unless the services, facilities, or supplies are capital-related in 
nature and:
    (A) The capital-related equipment is leased or rented by the 
provider;
    (B) The capital-related equipment is located on the provider's 
premises; and
    (C) The capital-related portion of the charge is separately 
specified in the charge to the provider.
    (2) Direct medical education costs. When requested in writing by a 
hospital, CHAMPUS shall reimburse the hospital its actual direct medical 
education costs as reported annually to the CHAMPUS fiscal intermediary. 
Such teaching costs must be for a teaching program approved under 
Medicare Regulation Sec. 413.85. Payment for direct medical education 
costs shall be made annually based on the ratio of CHAMPUS inpatient 
days for those benficiaries subject to the CHAMPUS DRG-based payment 
system to total inpatient days applied to the hospital's total allowable 
direct medical education costs. Allowable direct medical education costs 
are those specified in Medicare Regulation Sec. 413.85.
    (3) Information necessary for payment of capital and direct medical 
education costs. All hospitals subject to the CHAMPUS DRG-based payment 
system, except for children's hospitals, may be reimbursed for allowed 
capital and direct medical education costs by submitting a request to 
the CHAMPUS contractor. Beginning October 1, 1998, such request shall be 
filed with CHAMPUS on or before the last day of the twelfth month 
following the close of the hospitals' cost reporting period, and shall 
cover the one-year period corresponding to the hospital's Medicare cost-
reporting period. The first such request may cover a period of less than 
a full year--from the effective date of the CHAMPUS DRG-based payment 
system to the end of the hospital's Medicare cost-reporting period. All 
costs reported to the CHAMPUS contractor must correspond to the costs 
reported on the hospital's Medicare cost report. An extension of the due 
date for filing the request may only be granted if an extension has been 
granted by HCFA due to a provider's operations being significantly 
adversely affected due to extraordinary circumstances over which the 
provider has no control, such as flood or fire. (If these costs change 
as a result of a subsequent audit by Medicare, the revised costs are to 
be reported to the hospital's CHAMPUS contractor within 30 days of the 
date the hospital is notified

[[Page 277]]

of the change). The request must be signed by the hospital official 
responsible for verifying the amounts and shall contain the following 
information.
    (i) The hospital's name.
    (ii) The hospital's address.
    (iii) The hospital's CHAMPUS provider number.
    (iv) The hospital's Medicare provider number.
    (v) The period covered--this must correspond to the hospital's 
Medicare cost-reporting period.
    (vi) Total inpatient days provided to all patients in units subject 
to DRG-based payment.
    (vii) Total allowed CHAMPUS inpatient days provided in units subject 
to DRG-based payment.
    (viii) Total allowable capital costs.
    (ix) Total allowable direct medical education costs.
    (x) Total full-time equivalents for:
    (A) Residents.
    (B) Interns.
    (xi) Total inpatient beds as of the end of the cost-reporting 
period. If this has changed during the reporting period, an explanation 
of the change must be provided.
    (xii) Title of official signing the report.
    (xiii) Reporting date.
    (xiv) The report shall contain a certification statement that any 
changes to the items in paragraphs (a)(1)(iii)(G)(3)(vi), (vii), (viii), 
(ix), or (x), which are a result of an audit of the hospital's Medicare 
cost-report, shall be reported to CHAMPUS within thirty (30) days of the 
date the hospital is notified of the change.
    (2) CHAMPUS mental health per diem payment system. The CHAMPUS 
mental health per diem payment system shall be used to reimburse for 
inpatient mental health hospital care in specialty psychiatric hospitals 
and units. Payment is made on the basis of prospectively determined 
rates and paid on a per diem basis. The system uses two sets of per 
diems. One set of per diems applies to hospitals and units that have a 
relatively higher number of CHAMPUS discharges. For these hospitals and 
units, the system uses hospital-specific per diem rates. The other set 
of per diems applies to hospitals and units with a relatively lower 
number of CHAMPUS discharges. For these hospitals and units, the system 
uses regional per diems, and further provides for adjustments for area 
wage differences and indirect medical education costs and additional 
pass-through payments for direct medical education costs.
    (i) Applicability of the mental health per diem payment system.
    (A) Hospitals and units covered. The CHAMPUS mental health per diem 
payment system applies to services covered (see paragraph (a)(2)(i)(B) 
of this section) that are provided in Medicare prospective payment 
system (PPS) exempt psychiatric specialty hospitals and all Medicare PPS 
exempt psychiatric specialty units of other hospitals. In addition, any 
psychiatric hospital that does not participate in Medicare, or any other 
hospital that has a psychiatric specialty unit that has not been so 
designated for exemption from the Medicare prospective payment system 
because the hospital does not participate in Medicare, may be designated 
as a psychiatric hospital or psychiatric specialty unit for purposes of 
the CHAMPUS mental health per diem payment system upon demonstrating 
that it meets the same criteria (as determined by the Director, 
OCHAMPUS) as required for the Medicare exemption. The CHAMPUS mental 
health per diem payment system does not apply to mental health services 
provided in other hospitals.
    (B) Services covered. Unless specifically exempted, all covered 
hospitals' and units' inpatient claims which are classified into a 
mental health DRG (DRG categories 425-432, but not DRG 424) or an 
alcohol/drug abuse DRG (DRG categories 433-437) shall be subject to the 
mental health per diem payment system.
    (ii) Hospital-specific per diems for higher volume hospitals and 
units. This paragraph describes the per diem payment amounts for 
hospitals and units with a higher volume of CHAMPUS discharges.
    (A)(1) Per diem amount. A hospital-specific per diem amount shall be 
calculated for each hospital and unit with a higher volume of CHAMPUS 
discharges. The base period per diem

[[Page 278]]

amount shall be equal to the hospital's average daily charge in the base 
period. The base period amount, however, may not exceed the cap 
described in paragraph (a)(2)(ii)(B) of this section. The base period 
amount shall be updated in accordance with paragraph (a)(2)(iv) of this 
section.
    (2) In states that have implemented a payment system in connection 
with which hospitals in that state have been exempted from the CHAMPUS 
DRG-based payment system pursuant to paragraph (a)(1)(ii)(A) of this 
section, psychiatric hospitals and units may have per diem amounts 
established based on the payment system applicable to such hospitals and 
units in the state. The per diem amount, however, may not exceed the cap 
amount applicable to other higher volume hospitals.
    (B) Cap--(1) As it affects payment for care provided to patients 
prior to April 6, 1995, the base period per diem amount may not exceed 
the 80th percentile of the average daily charge weighted for all 
discharges throughout the United States from all higher volume 
hospitals.
    (2) Applicable to payments for care provided to patients on or after 
April 6, 1996, the base period per diem amount may not exceed the 70th 
percentile of the average daily charge weighted for all discharges 
throughout the United States from all higher volume hospitals. For this 
purpose, base year charges shall be deemed to be charges during the 
period of July 1, 1991 to June 30, 1992, adjusted to correspond to base 
year (FY 1988) charges by the percentage change in average daily charges 
for all higher volume hospitals and units between the period of July 1, 
1991 to June 30, 1992 and the base year.
    (C) Review of per diem. Any hospital or unit which believes OCHAMPUS 
calculated a hospital-specific per diem which differs by more than $5.00 
from that calculated by the hospital or unit may apply to the Director, 
OCHAMPUS, or a designee, for a recalculation. The burden of proof shall 
be on the hospital.
    (iii) Regional per diems for lower volume hospitals and units. This 
paragraph describes the per diem amounts for hospitals and units with a 
lower volume of CHAMPUS discharges.
    (A) Per diem amounts. Hospitals and units with a lower volume of 
CHAMPUS patients shall be paid on the basis of a regional per diem 
amount, adjusted for area wages and indirect medical education. Base 
period regional per diems shall be calculated based upon all CHAMPUS 
lower volume hospitals' claims paid during the base period. Each 
regional per diem amount shall be the quotient of all covered charges 
divided by all covered days of care, reported on all CHAMPUS claims from 
lower volume hospitals in the region paid during the base period, after 
having standardized for indirect medical education costs and area wage 
indexes and subtracted direct medical education costs. Regional per diem 
amounts are adjusted in accordance with paragraph (a)(2)(iii)(C) of this 
section. Additional pass-through payments to lower volume hospitals are 
made in accordance with paragraph (a)(2)(iii)(D) of this section. The 
regions shall be the same as the Federal census regions.
    (B) Review of per diem amount. Any hospital that believes the 
regional per diem amount applicable to that hospital has been 
erroneously calculated by OCHAMPUS by more than $5.00 may submit to the 
Director, OCHAMPUS, or a designee, evidence supporting a different 
regional per diem. The burden of proof shall be on the hosptial.
    (C) Adjustments to regional per diems. Two adjustments shall be made 
to the regional per diem rates.
    (1) Area wage index. The same area wage indexes used for the CHAMPUS 
DRG-based payment system (see paragraph (a)(1)(iii)(E)(2) of this 
section) shall be applied to the wage portion of the applicable regional 
per diem rate for each day of the admission. The wage portion shall be 
the same as that used for the CHAMPUS DRG-based payment system.
    (2) Indirect medical education. The indirect medical education 
adjustment factors shall be calculated for teaching hospitals in the 
same manner as is used in the CHAMPUS DRG-based payment system (see 
paragraph (a)(1)(iii)(E)(3) of this section) and applied to the 
applicable regional per diem rate for each day of the admission.

[[Page 279]]

    (D) Annual cost pass-through for direct medical education. In 
addition to payments made to lower volume hospitals under paragraph 
(a)(2)(iii) of this section, CHAMPUS shall annually reimburse hospitals 
for actual direct medical education costs associated with services to 
CHAMPUS beneficiaries. This reimbursement shall be done pursuant to the 
same procedures as are applicable to the CHAMPUS DRG-based payment 
system (see paragraph (a)(1)(iii)(G) of this section).
    (iv) Base period and update factors.
    (A) Base period. The base period for calculating the hospital-
specific and regional per diems, as described in paragraphs (a)(2)(ii) 
and (a)(2)(iii) of this section, is Federal fiscal year 1988. Base 
period calculations shall be based on actual claims paid during the 
period July 1, 1987 through May 31, 1988, trended forward to represent 
the 12-month period ending September 30, 1988 on the basis of the 
Medicare inpatient hospital market basket rate.
    (B) Alternative hospital-specific data base. Upon application of a 
higher volume hospital or unit to the Director, OCHAMPUS, or a designee, 
the hospital or unit may have its hospital-specific base period 
calculations based on claims with a date of discharge (rather than date 
of payment) between July 1, 1987 through May 31, 1988 if it has 
generally experienced unusual delays in claims payments and if the use 
of such an alternative data base would result in a difference in the per 
diem amount of at least $5.00. For this purpose, the unusual delays 
means that the hospital's or unit's average time period between date of 
discharge and date of payment is more than two standard deviations 
longer than the national average.
    (C) Update factors--(1) The hospital-specific per diems and the 
regional per diems calculated for the base period pursuant to paragraphs 
(a)(2)(ii) of this section shall remain in effect for federal fiscal 
year 1989; there will be no additional update for fiscal year 1989.
    (2) Except as provided in paragraph (a)(2)(iv)(C)(3) of this 
section, for subsequent federal fiscal years, each per diem shall be 
updated by the Medicare update factor for hospitals and units exempt 
from the Medicare prospective payment system.
    (3) As an exception to the update required by paragraph 
(a)(2)(iv)(C)(2) of this section, all per diems in effect at the end of 
fiscal year 1995 shall remain in effect, with no additional update, 
throughout fiscal years 1996 and 1997. For fiscal year 1998 and 
thereafter, the per diems in effect at the end of fiscal year 1997 will 
be updated in accordance with paragraph (a)(2)(iv)(C)(2).
    (4) Hospitals and units with hospital-specific rates will be 
notified of their respective rates prior to the beginning of each 
Federal fiscal year. New hospitals shall be notified at such time as the 
hospital rate is determined. The actual amounts of each regional per 
diem that will apply in any Federal fiscal year shall be published in 
the Federal Register at approximately the start of that fiscal year.
    (v) Higher volume hospitals. This paragraph describes the 
classification of and other provisions pertinent to hospitals with a 
higher volume of CHAMPUS patients.
    (A) In general. Any hospital or unit that had an annual rate of 25 
or more CHAMPUS discharges of CHAMPUS patients during the period July 1, 
1987 through May 31, 1988 shall be considered a higher volume hospital 
has 25 or more CHAMPUS discharges, that hospital shall be considered to 
be a higher volume hospital during Federal fiscal year 1989 and all 
subsequent fiscal years. All other hospitals and units covered by the 
CHAMPUS mental health per diem payment system shall be considered lower 
volume hospitals.
    (B) Hospitals that subsequently become higher volume hospitals. In 
any Federal fiscal year in which a hospital, including a new hospital 
(see paragraph (a)(2)(v)(C) of this section), not previously classified 
as a higher volume hospital has 25 or more CHAMPUS discharges, that 
hospital shall be considered to be a higher volume hospital during the 
next Federal fiscal year and all subsequent fiscal years. The hospital 
specific per diem amount shall be calculated in accordance with the 
provisions of paragraph (a)(2)(ii) of this section, except that the base 
period average daily charge shall be deemed to be the hospital's average 
daily charge

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in the year in which the hospital had 25 or more discharges, adjusted by 
the percentage change in average daily charges for all higher volume 
hospitals and units between the year in which the hospital had 25 or 
more CHAMPUS discharges and the base period. The base period amount, 
however, may not exceed the cap described in paragraph (a)(2)(ii)(B) of 
this section.
    (C) Special retrospective payment provision for new hospitals. For 
purposes of this paragraph, a new hospital is a hospital that qualifies 
for the Medicare exemption from the rate of increase ceiling applicable 
to new hospitals which are PPS-exempt psychiatric hospitals. Any new 
hospital that becomes a higher volume hospital, in addition to 
qualifying prospectively as a higher volume hospital for purposes of 
paragraph (a)(2)(v)(B) of this section, may additionally, upon 
application to the Director, OCHAMPUS, receive a retrospective 
adjustment. The retrospective adjustment shall be calculated so that the 
hospital receives the same government share payments it would have 
received had it been designated a higher volume hospital for the federal 
fiscal year in which it first had 25 or more CHAMPUS discharges and the 
preceding fiscal year (if it had any CHAMPUS patients during the 
preceding fiscal year). Such new hospitals must agree not to bill 
CHAMPUS beneficiaries for any additional costs beyond that determined 
initially.
    (D) Review of classification. Any hospital or unit which OCHAMPUS 
erroneously fails to classify as a higher volume hospital may apply to 
the Director, OCHAMPUS, or a designee, for such a classification. The 
hospital shall have the burden of proof.
    (vi) Payment for hospital based professional services. Lower volume 
hospitals and units may not bill separately for hospital based 
professional mental health services; payment for those services is 
included in the per diems. Higher volume hospitals and units, whether 
they billed CHAMPUS separately for hospital based professional mental 
health services or included those services in the hospital's billing to 
CHAMPUS, shall continue the practice in effect during the period July 1, 
1987 to May 31, 1988 (or other data base period used for calculating the 
hospital's or unit's per diem), except that any such hospital or unit 
may change its prior practice (and obtain an appropriate revision in its 
per diem) by providing to OCHAMPUS notice in accordance with procedures 
established by the Director, OCHAMPUS, or a designee.
    (vii) Leave days. CHAMPUS shall not pay for days where the patient 
is absent on leave from the specialty psychiatric hospital or unit. The 
hospital must identify these days when claiming reimbursement. CHAMPUS 
shall not count a patients's leave of absence as a discharge in 
determining whether a facility should be classified as a higher volume 
hospital pursuant to paragraph (a)(2)(v) of this section.
    (viii) Exemptions from the CHAMPUS mental health per diem payment 
system. The following providers and procedures are exempt from the 
CHAMPUS mental health per diem payment system.
    (A) Non-specialty providers. Providers of inpatient care which are 
not either psychiatric hospitals or psychiatric specialty units as 
described in paragraph (a)(2)(i)(A) of this section are exempt from the 
CHAMPUS mental health per diem payment system. Such providers should 
refer to paragraph (a)(1) of this section for provisions pertinent to 
the CHAMPUS DRG-based payment system.
    (B) DRG 424. Admissions for operating room procedures involving a 
principal diagnosis of mental illness (services which group into DRG 
424) are exempt from the per diem payment system. They will be 
reimbursed pursuant to the provisions of paragraph (a)(3) of this 
section.
    (C) Non-mental health services. Admissions for non-mental health 
procedures in specialty psychiatric hospitals and units are exempt from 
the per diem payment system. They will be reimbursed pursuant to the 
provisions of paragraph (a)(3) of this section.
    (D) Sole community hospitals. Any hospital which has qualified for 
special treatment under the Medicare prospective payment system as a 
sole community hospital and has not given up that classification is 
exempt.
    (E) Hospitals outside the U.S. A hospital is exempt if it is not 
located in

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one of the 50 states, the District of Columbia or Puerto Rico.
    (ix) Per diem payment for psychiatric and substance use disorder 
rehabilitation partial hospitalization services--(A) In general. 
Psychiatric and substance use disorder rehabilitation partial 
hospitalization services authorized by Sec. 199.4 (b)(10) and (e)(4) 
and provided by institutional providers authorized under Sec. 199.6 
(b)(4)(xii) and (b)(4)(xiv), are reimbursed on the basis of 
prospectively determined, all-inclusive per diem rates. The per diem 
payment amount must be accepted as payment in full for all institutional 
services provided, including board, routine nursing services, ancillary 
services (includes art, music, dance, occupational and other such 
therapies), psychological testing and assessments, overhead and any 
other services for which the customary practice among similar providers 
is included as part of the institutional charges.
    (B) Services which may be billed separately. The following services 
are not considered as included within the per diem payment amount and 
may be separately billed when provided by an authorized independent 
professional provider:
    (1) Psychotherapy sessions not included. Professional services 
provided by an authorized professional provider (who is not employed by 
or under contract with the partial hospitalization program) for purposes 
of providing clinical patient care to a patient in the partial 
hospitalization program are not included in the per diem rate. They may 
be separately billed. Professional mental health benefits are limited to 
a maximum of one session (60 minutes individual, 90 minutes family, 
etc.) per authorized treatment day not to exceed five sessions in any 
calendar week.
    (2) Non-mental health related medical services. Those services not 
normally included in the evaluation and assessment of a partial 
hospitalization program, non-mental health related medical services, may 
be separately billed when provided by an authorized independent 
professional provider. This includes ambulance services when medically 
necessary for emergency transport.
    (C) Per diem rate. For any full day partial hospitalization program 
(minimum of 6 hours), the maximum per diem payment amount is 40 percent 
of the average inpatient per diem amount per case established under the 
CHAMPUS mental health per diem reimbursement system for both high and 
low volume psychiatric hospitals and units (as defined in Sec. 
199.14(a)(2)) for the fiscal year. A partial hospitalization program of 
less than 6 hours (with a minimum of three hours) will be paid a per 
diem rate of 75 percent of the rate for a full-day program.
    (D) Other requirements. No payment is due for leave days, for days 
in which treatment is not provided, or for days in which the duration of 
the program services was less than three hours.
    (3) Billed charges and set rates. The allowable costs for authorized 
care in all hospitals not subject to the CHAMPUS DRG-based payment 
system or the CHAMPUS mental health per diem payment system shall be 
determined on the basis of billed charges or set rates. Under this 
procedure the allowable costs may not exceed the lower of:
    (i) The actual charge for such service made to the general public; 
or
    (ii) The allowed charge applicable to the policyholders or 
subscribers of the CHAMPUS fiscal intermediary for comparable services 
under comparable circumstances, when extended to CHAMPUS beneficiaries 
by consent or agreement; or
    (iii) The allowed charge applicable to the citizens of the community 
or state as established by local or state regulatory authority, 
excluding title XIX of the Social Security Act or other welfare program, 
when extended to CHAMPUS beneficiaries by consent or agreement.
    (4) CHAMPUS discount rates. The CHAMPUS-determined allowable cost 
for authorized care in any hospital may be based on discount rates 
established under paragraph (i) of this section.
    (5) Hospital outpatient services. This paragraph (a)(5) establishes 
payment methods for certain outpatient services, including emergency 
services, provided by hospitals.
    (i) Clinical laboratory services. Services provided on an outpatient 
basis by hospital-based clinical laboratories are

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paid on the same basis as services covered by the allowable charge 
method under paragraph (h)(1)(viii) of this section.
    (ii) Rehabilitation therapy services. Rehabilitation therapy 
services provided on an outpatient basis by hospitals are paid on the 
same basis as rehabilitation therapy services covered by the allowable 
charge method under paragraph (h)(1) of this section.
    (iii) Venipuncture. Routine venipuncture services provided on an 
outpatient basis by hospitals are paid on the same basis as such 
services covered by the allowable charge method under paragraph (h)(1) 
of this section. Routine venipuncture services provided on an outpatient 
basis by institutional providers other than hospitals are also paid on 
this basis.
    (iv) Radiology services. TRICARE payments for hospital outpatient 
radiology services are based on the allowable charge method under 
paragraph (h)(1) of the section in the case of radiology services for 
which the CMAC rates establish under that paragraph provide a payment 
rate for the technical component of the radiology services provided. 
Hospital charges for an outpatient radiology service are reimbursed 
using the CMAC technical component rate.
    (b) Skilled nursing facilities (SNFs). (1) Use of Medicare 
prospective payment system and rates. TRICARE payments to SNFs are 
determined using the same methods and rates used under the Medicare 
prospective payment system for SNFs under 42 CFR part 413, subpart J, 
except for children under age ten. SNFs receive a per diem payment of a 
predetermined Federal payment rate appropriate for the case based on 
patient classification (using the RUG classification system), urban or 
rural location of the facility, and area wage index.
    (2) Payment in full. The SNF payment rates represent payment in full 
(subject to any applicable beneficiary cost shares) for all costs 
(routine, ancillary, and capital-related) associated with furnishing 
inpatient SNF services to TRICARE beneficiaries other than costs 
associated with operating approved educational activities.
    (3) Education costs. Costs for approved educational activities shall 
be subject to separate payment under procedures established by the 
Director, TRICARE Management Activity. Such procedures shall be similar 
to procedures for payments for direct medical education costs of 
hospitals under paragraph (a)(1)(iii)(G)(2) of this section.
    (4) Resident assessment data. SNFs are required to submit the same 
resident assessment data as is required under the Medicare program. (The 
residential assessment is addressed in the Medicare regulations at 42 
CFR 483.20.) SNFs must submit assessments according to an assessment 
schedule. This schedule must include performance of patient assessments 
on the 5th, 14th, and 30th days of SNF care and at each successive 30 
day interval of SNF admissions that are longer than 30 days. It must 
also include such other assessments that are necessary to account for 
changes in patient care needs. TRICARE pays a default rate for the days 
of a patient's care for which the SNF has failed to comply with the 
assessment schedule.
    (c) Reimbursement for Other Than Hospitals and SNFs. The Director, 
OCHAMPUS, or a designee, shall establish such other methods of 
determining allowable cost or charge reimbursement for those 
institutions, other than hospitals and SNFs, as may be required.
    (d) Payment of institutional facility costs for ambulatory surgery. 
(1) In general. CHAMPUS pays institutional facility costs for ambulatory 
surgery on the basis of prospectively determined amounts, as provided in 
this paragraph. This payment method is similar to that used by the 
Medicare program for ambulatory surgery. This paragraph applies to 
payment for institutional charges for ambulatory surgery provided in 
hospitals and freestanding ambulatory surgical centers. It does not 
apply to professional services. A list of ambulatory surgery procedures 
subject to the payment method set forth in this paragraph shall be 
published periodically by the Director, OCHAMPUS. Payment to 
freestanding ambulatory surgery centers is limited to these procedures.

[[Page 283]]

    (2) Payment in full. The payment provided for under this paragraph 
is the payment in full for services covered by this paragraph. 
Facilities may not charge beneficiaries for amounts, if any, in excess 
of the payment amounts determined pursuant to this paragraph.
    (3) Calculation of standard payment rates. Standard payment rates 
are calculated for groups of procedures under the following steps:
    (i) Step 1: Calculate a median standardized cost for each procedure. 
For each ambulatory surgery procedure, a median standardized cost will 
be calculated on the basis of all ambulatory surgery charges nationally 
under CHAMPUS during a recent one-year base period. The steps in this 
calculation include standardizing for local labor costs by reference to 
the same wage index and labor/non-labor-related cost ratio as applies to 
the facility under Medicare, applying a cost-to-charge ratio, 
calculating a median cost for each procedure, and updating to the year 
for which the payment rates will be in effect by the Consumer Price 
Index-Urban. In applying a cost-to-charge ratio, the Medicare cost-to-
charge ratio for freestanding ambulatory surgery centers (FASCs) will be 
used for all charges from FASCs, and the Medicare cost-to-charge ratio 
for hospital outpatient settings will be used for all charges from 
hospitals.
    (ii) Step 2: Grouping procedures. Procedures will then be placed 
into one of ten groups by their median per procedure cost, starting with 
$0 to $299 for group 1 and ending with $1000 to $1299 for group 9 and 
$1300 and above for group 10, with groups 2 through 8 set on the basis 
of $100 fixed intervals.
    (iii) Step 3: Adjustments to groups. The Director, OCHAMPUS may make 
adjustments to the groupings resulting from step 2 to account for any 
ambulatory surgery procedures for which there were insufficient data to 
allow a grouping or to correct for any anomalies resulting from data or 
statistical factors or other special factors that fairness requires be 
specially recognized. In making any such adjustments, the Director may 
take into consideration the placing of particular procedures in the 
ambulatory surgery groups under Medicare.
    (iv) Step 4: standard payment amount per group. The standard payment 
amount per group will be the volume weighted median per procedure cost 
for the procedures in that group. For cases in which the standard 
payment amount per group exceeds the CHAMPUS-determined inpatient 
allowable amount, the Director, TSO or his designee, may make 
adjustments.
    (v) Step 5: Actual payments. Actual payment for a procedure will be 
the standard payment amount for the group which covers that procedure, 
adjusted for local labor costs by reference to the same labor/non-labor- 
related cost ratio and hospital wage index as used for ambulatory 
surgery centers by Medicare.
    (4) Multiple procedures. In cases in which authorized multiple 
procedures are performed during the same operative session, payment 
shall be based on 100 percent of the payment amount for the procedure 
with the highest ambulatory surgery payment amount, plus, for each other 
procedure performed during the session, 50 percent of its payment 
amount.
    (5) Annual updates. The standard payment amounts will be updated 
annually by the same update factor as is used in the Medicare annual 
updates for ambulatory surgery center payments.
    (6) Recalculation of rates. The Director, OCHAMPUS may periodically 
recalculate standard payment rates for ambulatory surgery using the 
steps set forth in paragraph (d)(3) of this section.
    (e) Reimbursement of Birthing Centers.
    (1) Reimbursement for maternity care and childbirth services 
furnished by an authorized birthing center shall be limited to the lower 
of the CHAMPUS established all-inclusive rate or the center's most-
favored all-inclusive rate.
    (2) The all-inclusive rate shall include the following to the extent 
that they are usually associated with a normal pregnancy and childbirth: 
Laboratory studies, prenatal management, labor management, delivery, 
post-partum management, newborn care, birth assistant, certified nurse-
midwife professional services, physician professional services, and the 
use of the facility.

[[Page 284]]

    (3) The CHAMPUS established all-inclusive rate is equal to the sum 
of the CHAMPUS area prevailing professional charge for total obstetrical 
care for a normal pregnancy and delivery and the sum of the average 
CHAMPUS allowable institutional charges for supplies, laboratory, and 
delivery room for a hospital inpatient normal delivery. The CHAMPUS 
established all-inclusive rate areas will coincide with those 
established for prevailing professional charges and will be updated 
concurrently with the CHAMPUS area prevailing professional charge 
database.
    (4) Extraordinary maternity care services, when otherwise 
authorized, may be reimbursed at the lesser of the billed charge or the 
CHAMPUS allowable charge.
    (5) Reimbursement for an incomplete course of care will be limited 
to claims for professional services and tests where the beneficiary has 
been screened but rejected for admission into the birthing center 
program, or where the woman has been admitted but is discharged from the 
birthing center program prior to delivery, adjudicated as individual 
professional services and items.
    (6) The beneficiary's share of the total reimbursement to a birthing 
center is limited to the cost-share amount plus the amount billed for 
non-covered services and supplies.
    (f) Reimbursement of Residential Treatment Centers. The CHAMPUS rate 
is the per diem rate that CHAMPUS will authorize for all mental health 
services rendered to a patient and the patient's family as part of the 
total treatment plan submitted by a CHAMPUS-approved RTC, and approved 
by the Director, OCHAMPUS, or designee.
    (1) The all-inclusive per diem rate for RTCs operating or 
participating in CHAMPUS during the base period of July 1, 1987, through 
June 30, 1988, will be the lowest of the following conditions:
    (i) The CHAMPUS rate paid to the RTC for all-inclusive services as 
of June 30, 1988, adjusted by the Consumer Price Index--Urban (CPI-U) 
for medical care as determined applicable by the Director, OCHAMPUS, or 
designee; or
    (ii) The per diem rate accepted by the RTC from any other agency or 
organization (public or private) that is high enough to cover one-third 
of the total patient days during the 12-month period ending June 30, 
1988, adjusted by the CPI-U; or
    Note: The per diem rate accepted by the RTC from any other agency or 
organization includes the rates accepted from entities such as 
Government contractors in CHAMPUS demonstration projects.
    (iii) An OCHAMPUS determined capped per diem amount not to exceed 
the 80th percentile of all established CHAMPUS RTC rates nationally, 
weighted by total CHAMPUS days provided at each rate during the base 
period discussed in paragraph (f)(1) of this section.
    (2) The all-inclusive per diem rates for RTCs which began operation 
after June 30, 1988, or began operation before July 1, 1988, but had 
less than 6 months of operation by June 30, 1988, will be calculated 
based on the lower of the per diem rate accepted by the RTC that is high 
enough to cover one-third of the total patient days during its first 6 
to 12 consecutive months of operation, or the CHAMPUS determined capped 
amount. Rates for RTCs beginning operation prior to July 1, 1988, will 
be adjusted by an appropriate CPI-U inflation factor for the period 
ending June 30, 1988. A period of less than 12 months will be used only 
when the RTC has been in operation for less than 12 months. Once a full 
12 months is available, the rate will be recalculated.
    (3) For care on or after April 6, 1995, the per diem amount may not 
exceed a cap of the 70th percentile of all established Federal fiscal 
year 1994 RTC rates nationally, weighted by total CHAMPUS days provided 
at each rate during the first half of Federal fiscal year 1994, and 
updated to FY95. For Federal fiscal years 1996 and 1997, the cap shall 
remain unchanged. For Federal fiscal years after fiscal year 1997, the 
cap shall be adjusted by the Medicare update factor for hospitals and 
units exempt from the Medicare prospective payment system.
    (4) All educational costs, whether they include routine education or 
special education costs, are excluded from reimbursement except when 
appropriate education is not available from, or not payable by, a 
cognizant public entity.

[[Page 285]]

    (i) The RTC shall exclude educational costs from its daily costs.
    (ii) The RTC's accounting system must be adequate to assure CHAMPUS 
is not billed for educational costs.
    (iii) The RTC may request payment of educational costs on an 
individual case basis from the Director, OCHAMPUS, or designee, when 
appropriate education is not available from, or not payable by, a 
cognizant public entity. To qualify for reimbursement of educational 
costs in individual cases, the RTC shall comply with the application 
procedures established by the Director, OCHAMPUS, or designee, 
including, but not limited to, the following:
    (A) As part of its admission procedures, the RTC must counsel and 
assist the beneficiary and the beneficiary's family in the necessary 
procedures for assuring their rights to a free and appropriate public 
education.
    (B) The RTC must document any reasons why an individual beneficiary 
cannot attend public educational facilities and, in such a case, why 
alternative educational arrangements have not been provided by the 
cognizant public entity.
    (C) If reimbursement of educational costs is approved for an 
individual beneficiary by the Director, OCHAMPUS, or designee, such 
educational costs shall be shown separately from the RTC's daily costs 
on the CHAMPUS claim. The amount paid shall not exceed the RTC's most-
favorable rate to any other patient, agency, or organization for special 
or general educational services whichever is appropriate.
    (D) If the RTC fails to request CHAMPUS approval of the educational 
costs on an individual case, the RTC agrees not to bill the beneficiary 
or the beneficiary's family for any amounts disallowed by CHAMPUS. 
Requests for payment of educational costs must be referred to the 
Director, OCHAMPUS, or designee for review and a determination of the 
applicability of CHAMPUS benefits.
    (5) Subject to the applicable RTC cap, adjustments to the RTC rates 
may be made annually.
    (i) For Federal fiscal years through 1995, the adjustment shall be 
based on the Consumer Price Index-Urban (CPI-U) for medical care as 
determined applicable by the Director, OCHAMPUS.
    (ii) For purposes of rates for Federal fiscal years 1996 and 1997:
    (A) For any RTC whose 1995 rate was at or above the thirtieth 
percentile of all established Federal fiscal year 1995 RTC rates 
normally, weighted by total CHAMPUS days provided at each rate during 
the first half of Federal fiscal year 1994, that rate shall remain in 
effect, with no additional update, throughout fiscal years 1996 and 
1997; and
    (B) For any RTC whose 1995 rate was below the 30th percentile level 
determined under paragraph (f)(5)(ii)(A) of this section, the rate shall 
be adjusted by the lesser of: the CPI-U for medical care, or the amount 
that brings the rate up to that 30th percentile level.
    (iii) For subsequent Federal fiscal years after fiscal year 1997, 
RTC rates shall be updated by the Medicare update factor for hospitals 
and units exempt from the Medicare prospective payment system.
    (6) For care provided on or after July 1, 1995, CHAMPUS will not pay 
for days in which the patient is absent on leave from the RTC. The RTC 
must identify these days when claiming reimbursement.
    (g) Reimbursement of hospice programs. Hospice care will be 
reimbursed at one of four predetermined national CHAMPUS rates based on 
the type and intensity of services furnished to the beneficiary. A 
single rate is applicable for each day of care except for continuous 
home care where payment is based on the number of hours of care 
furnished during a 24-hour period. These rates will be adjusted for 
regional differences in wages using wage indices for hospice care.
    (1) National hospice rates. CHAMPUS will use the national hospice 
rates for reimbursement of each of the following levels of care provided 
by or under arrangement with a CHAMPUS approved hospice program:
    (i) Routine home care. The hospice will be paid the routine home 
care rate for each day the patient is at home, under the care of the 
hospice, and not receiving continuous home care. This rate is paid 
without regard to the volume or

[[Page 286]]

intensity of routine home care services provided on any given day.
    (ii) Continuous home care. The hospice will be paid the continuous 
home care rate when continuous home care is provided. The continuous 
home care rate is divided by 24 hours in order to arrive at an hourly 
rate.
    (A) A minimum of 8 hours of care must be provided within a 24-hour 
day starting and ending at midnight.
    (B) More than half of the total actual hours being billed for each 
24-hour period must be provided by either a registered or licensed 
practical nurse.
    (C) Homemaker and home health aide services may be provided to 
supplement the nursing care to enable the beneficiary to remain at home.
    (D) For every hour or part of an hour of continuous care furnished, 
the hourly rate will be reimbursed to the hospice up to 24 hours a day.
    (iii) Inpatient respite care. The hospice will be paid at the 
inpatient respite care rate for each day on which the beneficiary is in 
an approved inpatient facility and is receiving respite care.
    (A) Payment for respite care may be made for a maximum of 5 days at 
a time, including the date of admission but not counting the date of 
discharge. The necessity and frequency of respite care will be 
determined by the hospice interdisciplinary group with input from the 
patient's attending physician and the hospice's medical director.
    (B) Payment for the sixth and any subsequent days is to be made at 
the routine home care rate.
    (iv) General inpatient care. Payment at the inpatient rate will be 
made when general inpatient care is provided for pain control or acute 
or chronic symptom management which cannot be managed in other settings. 
None of the other fixed payment rates (i.e., routine home care) will be 
applicable for a day on which the patient receives general inpatient 
care except on the date of discharge.
    (v) Date of discharge. For the day of discharge from an inpatient 
unit, the appropriate home care rate is to be paid unless the patient 
dies as an inpatient. When the patient is discharged deceased, the 
inpatient rate (general or respite) is to be paid for the discharge 
date.
    (2) Use of Medicare rates. CHAMPUS will use the most current 
Medicare rates to reimburse hospice programs for services provided to 
CHAMPUS beneficiaries. It is CHAMPUS' intent to adopt changes in the 
Medicare reimbursement methodology as they occur; e.g., Medicare's 
adoption of an updated, more accurate wage index.
    (3) Physician reimbursement. Payment is dependent on the physician's 
relationship with both the beneficiary and the hospice program.
    (i) Physicians employed by, or contracted with, the hospice. (A) 
Administrative and supervisory activities (i.e., establishment, review 
and updating of plans of care, supervising care and services, and 
establishing governing policies) are included in the adjusted national 
payment rate.
    (B) Direct patient care services are paid in addition to the 
adjusted national payment rate.
    (1) Physician services will be reimbursed an amount equivalent to 
100 percent of the CHAMPUS' allowable charge; i.e., there will be no 
cost-sharing and/or deductibles for hospice physician services.
    (2) Physician payments will be counted toward the hospice cap 
limitation.
    (ii) Independent attending physician. Patient care services rendered 
by an independent attending physician (a physician who is not considered 
employed by or under contract with the hospice) are not part of the 
hospice benefit.
    (A) Attending physician may bill in his/her own right.
    (B) Services will be subject to the appropriate allowable charge 
methodology.
    (C) Reimbursement is not counted toward the hospice cap limitation.
    (D) Services provided by an independent attending physician must be 
coordinated with any direct care services provided by hospice 
physicians.
    (E) The hospice must notify the CHAMPUS contractor of the name of 
the physician whenever the attending physician is not a hospice 
employee.
    (iii) Voluntary physician services. No payment will be allowed for 
physician services furnished voluntarily (both physicians employed by, 
and under

[[Page 287]]

contract with, the hospice and independent attending physicians). 
Physicians may not discriminate against CHAMPUS beneficiaries; e.g., 
designate all services rendered to non-CHAMPUS patients as volunteer and 
at the same time bill for CHAMPUS patients.
    (4) Unrelated medical treatment. Any covered CHAMPUS services not 
related to the treatment of the terminal condition for which hospice 
care was elected will be paid in accordance with standard reimbursement 
methodologies; i.e., payment for these services will be subject to 
standard deductible and cost-sharing provisions under the CHAMPUS. A 
determination must be made whether or not services provided are related 
to the individual's terminal illness. Many illnesses may occur when an 
individual is terminally ill which are brought on by the underlying 
condition of the ill patient. For example, it is not unusual for a 
terminally ill patient to develop pneumonia or some other illness as a 
result of his or her weakened condition. Similarly, the setting of bones 
after fractures occur in a bone cancer patient would be treatment of a 
related condition. Thus, if the treatment or control of an upper 
respiratory tract infection is due to the weakened state of the terminal 
patient, it will be considered a related condition, and as such, will be 
included in the hospice daily rates.
    (5) Cap amount. Each CHAMPUS-approved hospice program will be 
subject to a cap on aggregate CHAMPUS payments from November 1 through 
October 31 of each year, hereafter known as ``the cap period.''
    (i) The cap amount will be adjusted annually by the percent of 
increase or decrease in the medical expenditure category of the Consumer 
Price Index for all urban consumers (CPI-U).
    (ii) The aggregate cap amount (i.e., the statutory cap amount times 
the number of CHAMPUS beneficiaries electing hospice care during the cap 
period) will be compared with total actual CHAMPUS payments made during 
the same cap period.
    (iii) Payments in excess of the cap amount must be refunded by the 
hospice program. The adjusted cap amount will be obtained from the 
Health Care Financing Administration (HCFA) prior to the end of each cap 
period.
    (iv) Calculation of the cap amount for a hospice which has not 
participated in the program for an entire cap year (November 1 through 
October 31) will be based on a period of at least 12 months but no more 
than 23 months. For example, the first cap period for a hospice entering 
the program on October 1, 1994, would run from October 1, 1994 through 
October 31, 1995. Similarly, the first cap period for hospice providers 
entering the program after November 1, 1993 but before November 1, 1994 
would end October 31, 1995.
    (6) Inpatient limitation. During the 12-month period beginning 
November 1 of each year and ending October 31, the aggregate number of 
inpatient days, both for general inpatient care and respite care, may 
not exceed 20 percent of the aggregate total number of days of hospice 
care provided to all CHAMPUS beneficiaries during the same period.
    (i) If the number of days of inpatient care furnished to CHAMPUS 
beneficiaries exceeds 20 percent of the total days of hospice care to 
CHAMPUS beneficiaries, the total payment for inpatient care is 
determined follows:
    (A) Calculate the ratio of the maximum number of allowable inpatient 
days of the actual number of inpatient care days furnished by the 
hospice to Medicare patients.
    (B) Multiply this ratio by the total reimbursement for inpatient 
care made by the CHAMPUS contractor.
    (C) Multiply the number of actual inpatient days in excess of the 
limitation by the routine home care rate.
    (D) Add the amounts calculated in paragraphs (g)(6)(i) (B) and (C) 
of this section.
    (ii) Compare the total payment for inpatient care calculated in 
paragraph (g)(6)(i)(D) of this section to actual payments made to the 
hospice for inpatient care during the cap period.
    (iii) Payments in excess of the inpatient limitation must be 
refunded by the hospice program.
    (7) Hospice reporting responsibilities. The hospice is responsible 
for reporting the following data within 30 days after the end of the cap 
period:
    (i) Total reimbursement received and receivable for services 
furnished

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CHAMPUS beneficiaries during the cap period, including physician's 
services not of an administrative or general supervisory nature.
    (ii) Total reimbursement received and receivable for general 
inpatient care and inpatient respite care furnished to CHAMPUS 
beneficiaries during the cap period.
    (iii) Total number of inpatient days furnished to CHAMPUS hospice 
patients (both general inpatient and inpatient respite days) during the 
cap period.
    (iv) Total number of CHAMPUS hospice days (both inpatient and home 
care) during the cap period.
    (v) Total number of beneficiaries electing hospice care. The 
following rules must be adhered to by the hospice in determining the 
number of CHAMPUS beneficiaries who have elected hospice care during the 
period:
    (A) The beneficiary must not have been counted previously in either 
another hospice's cap or another reporting year.
    (B) The beneficiary must file an initial election statement during 
the period beginning September 28 of the previous cap year through 
September 27 of the current cap year in order to be counted as an 
electing CHAMPUS beneficiary during the current cap year.
    (C) Once a beneficiary has been included in the calculation of a 
hospice cap amount, he or she may not be included in the cap for that 
hospice again, even if the number of covered days in a subsequent 
reporting period exceeds that of the period where the beneficiary was 
included.
    (D) There will be proportional application of the cap amount when a 
beneficiary elects to receive hospice benefits from two or more 
different CHAMPUS-certified hospices. A calculation must be made to 
determine the percentage of the patient's length of stay in each hospice 
relative to the total length of hospice stay.
    (8) Reconsideration of cap amount and inpatient limit. A hospice 
dissatisfied with the contractor's calculation and application of its 
cap amount and/or inpatient limitation may request and obtain a 
contractor review if the amount of program reimbursement in 
controversy--with respect to matters which the hospice has a right to 
review--is at least $1000. The administrative review by the contractor 
of the calculation and application of the cap amount and inpatient 
limitation is the only administrative review available. These 
calculations are not subject to the appeal procedures set forth in Sec. 
199.10. The methods and standards for calculation of the hospice payment 
rates established by CHAMPUS, as well as questions as to the validity of 
the applicable law, regulations or CHAMPUS decisions, are not subject to 
administrative review, including the appeal procedures of Sec. 199.10.
    (9) Beneficiary cost-sharing. There are no deductibles under the 
CHAMPUS hospice benefit. CHAMPUS pays the full cost of all covered 
services for the terminal illness, except for small cost-share amounts 
which may be collected by the individual hospice for outpatient drugs 
and biologicals and inpatient respite care.
    (i) The patient is responsible for 5 percent of the cost of 
outpatient drugs or $5 toward each prescription, whichever is less. 
Additionally, the cost of prescription drugs (drugs or biologicals) may 
not exceed that which a prudent buyer would pay in similar 
circumstances; that is, a buyer who refuses to pay more than the going 
price for an item or service and also seeks to economize by minimizing 
costs.
    (ii) For inpatient respite care, the cost-share for each respite 
care day is equal to 5 percent of the amount CHAMPUS has estimated to be 
the cost of respite care, after adjusting the national rate for local 
wage differences.
    (iii) The amount of the individual cost-share liability for respite 
care during a hospice cost-share period may not exceed the Medicare 
inpatient hospital deductible applicable for the year in which the 
hospice cost-share period began. The individual hospice cost-share 
period begins on the first day an election is in effect for the 
beneficiary and ends with the close of the first period of 14 
consecutive days on each of which an election is not in effect for the 
beneficiary.
    (h) Reimbursement of Home Health Agencies (HHAs). HHAs will be 
reimbursed using the same methods and rates as used under the Medicare 
HHA

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prospective payment system under section 1895 of the Social Security Act 
(42 U.S.C. 1395fff) and 42 CFR part 484, subpart E, except for children 
under age ten and except as otherwise necessary to recognize distinct 
characteristics of TRICARE beneficiaries and as described in 
instructions issued by the Director, TMA. Under this methodology, an HHA 
will receive a fixed case-mix and wage-adjusted national 60-day episode 
payment amount as payment in full for all costs associated with 
furnishing home health services to TRICARE-eligible beneficiaries with 
the exception of osteoporosis drugs and DME. The full case-mix and wage-
adjusted 60-day episode amount will be payment in full subject to the 
following adjustments and additional payments:
    (1) Split percentage payments. The initial percentage payment for 
initial episodes is paid to an HHA at 60 percent of the case-mix and 
wage adjusted 60-day episode rate. The residual final payment for 
initial episodes is paid at 40 percent of the case-mix and wage adjusted 
60-day episode rate. The initial percentage payment for subsequent 
episodes is paid at 50 percent of the case-mix and wage-adjusted 60-day 
episode rate. The residual final payment for subsequent episodes is paid 
at 50 percent of the case-mix and wage-adjusted 60-day episode rate.
    (2) Low-utilization payment. A low utilization payment is applied 
when a HHA furnishes four or fewer visits to a beneficiary during the 
60-day episode. The visits are paid at the national per-visit amount by 
discipline updated annually by the applicable market basket for each 
visit type.
    (3) Partial episode payment (PEP). A PEP adjustment is used for 
payment of an episode of less than 60 days resulting from a 
beneficiary's elected transfer prior to the end of the 60-day episode or 
discharge and readmission of a beneficiary to the same HHA before the 
end of the 60-day episode. The PEP payment is calculated by multiplying 
the proportion of the 60-day episode during which the beneficiary 
remained under the care of the original HHA by the beneficiary's 
assigned 60-day episode payment.
    (4) Significant change in condition (SCIC). The full-episode payment 
amount is adjusted if a beneficiary experiences a significant change in 
condition during the 60-day episode that was not envisioned in the 
initial treatment plan. The total significant change in condition 
payment adjustment is a proportional payment adjustment reflecting the 
time both prior to and after the patient experienced a significant 
change in condition during the 60-day episode. The initial percentage 
payment provided at the start of the 60-day episode will be adjusted at 
the end of the episode to reflect the first and second parts of the 
total SCIC adjustment determined at the end of the 60-day episode. The 
SCIC payment adjustment is calculated in two parts:
    (i) The first part of the SCIC payment adjustment reflects the 
adjustment to the level of payment prior to the significant change in 
the patient's condition during the 60-day episode.
    (ii) The second part of the SCIC payment adjustment reflects the 
adjustment to the level of payment after the significant change in the 
patient's condition occurs during the 60-day episode.
    (5) Outlier payment. Outlier payments are allowed in addition to 
regular 60-day episode payments for beneficiaries generating excessively 
high treatment costs. The outlier payment is a proportion of the imputed 
costs beyond the outlier threshold for each case-mix (HHRG) group.
    (6) Services paid outside the HHA prospective payment system. The 
following are services that receive a separate payment amount in 
addition to the prospective payment amount for home health services:
    (i) Durable medical equipment (DME). Reimbursement of DME is based 
on the same amounts established under the Medicare Durable Medical 
Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) fee schedule 
under 42 CFR part 414, subpart D.
    (ii) Osteoporosis drugs. Although osteoporosis drugs are subject to 
home health consolidated billing, they continue to be paid on a cost 
basis, in addition to episode payments.
    (7) Accelerated payments. Upon request, an accelerated payment may 
be

[[Page 290]]

made to an HHA that is receiving payment under the home health 
prospective payment system if the HHA is experiencing financial 
difficulties because there is a delay by the contractor in making 
payment to the HHA. The following are criteria for making accelerated 
payments:
    (i) Approval of payment. An HHA's request for an accelerated payment 
must be approved by the contractor and TRICARE Management Activity 
(TMA).
    (ii) Amount of payment. The amount of the accelerated payment is 
computed as a percentage of the net payment for unbilled or unpaid 
covered services.
    (iii) Recovery of payment. Recovery of the accelerated payment is 
made by recoupment as HHA bills are processed or by direct payment by 
the HHA.
    (8) Assessment data. Beneficiary assessment data, incorporating the 
use of the current version of the OASIS items, must be submitted to the 
contractor for payment under the HHA prospective payment system.
    (9) Administrative review. An HHA is not entitled to judicial or 
administrative review with regard to:
    (i) Establishment of the payment unit, including the national 60-day 
prospective episode payment rate, adjustments and outlier payment.
    (ii) Establishment of transition period, definition and application 
of the unit of payment.
    (iii) Computation of the initial standard prospective payment 
amounts.
    (iv) Establishment of case-mix and area wage adjustment factors.
    (i) Changes in Federal Law affecting Medicare. With regard to 
paragraph (b) and (h) of this section, the Department of Defense must, 
within the time frame specified in law and to the extent it is 
practicable, bring the TRICARE program into compliance with any changes 
in Federal Law affecting the Medicare program that occur after the 
effective date of the DoD rule to implement the prospective payment 
systems for skilled nursing facilities and home health agencies.
    (j) Reimbursement of individual health care professionals and other 
non-institutional, non-professional provers. The CHAMPUS-determined 
reasonable charge (the amount allowed by CHAMPUS) for the service of an 
individual health care professional or other non-institutional, non-
professional provider (even if employed by or under contract to an 
institutional provider) shall be determined by one of the following 
methodologies, that is, whichever is in effect in the specific 
geographic location at the time covered services and supplies are 
provided to a CHAMPUS beneficiary.
    (1) Allowable charge method--(i) Introduction--(A) In general. The 
allowable charge method is the preferred and primary method for 
reimbursement of individual health care professionals and other non-
institutional health care providers (covered by 10 U.S.C. 1079(h)(1)). 
The allowable charge for authorized care shall be the lower of the 
billed charge or the local CHAMPUS Maximum Allowable Charge (CMAC).
    (B) CHAMPUS Maximum Allowable Charge. Beginning in calendar year 
1992, prevailing charge levels and appropriate charge levels will be 
calculated on a national level. There will then be calculated a national 
CHAMPUS Maximum Allowable Charge (CMAC) level for each procedure, which 
shall be the lesser of the national prevailing charge level or the 
national appropriate charge level. The national CMAC will then be 
adjusted for localities in accordance with paragraph (g)(1)(iv) of this 
section.
    (C) Limits on balance billing by nonparticipating providers. 
Nonparticipating providers may not balance bill a beneficiary an amount 
which exceeds the applicable balance billing limit. The balance billing 
limit shall be the same percentage as the Medicare limiting charge 
percentage for nonparticipating physicians. The balance billing limit 
may be waived by the Director, OCHAMPUS on a case-by-case basis if 
requested by the CHAMPUS beneficiary (or sponsor) involved. A decision 
by the Director to waive or not waive the limit in any particular case 
is not subject to the appeal and hearing procedures of Sec. 199.10.
    (D) Special rule for TRICARE Prime Enrollees. In the case of a 
TRICARE Prime enrollee (see section 199.17) who receives authorized care 
from a non-participating provider, the CHAMPUS

[[Page 291]]

determined reasonable charge will be the CMAC level as established in 
paragraph (h)(1)(i)(B) of this section plus any balance billing amount 
up to the balance billing limit as referred to in paragraph (h)(1)(i)(C) 
of this section. The authorization for such care shall be pursuant to 
the procedures established by the Director, OCHAMPUS (also referred to 
as the TRICARE Support Office).
    (ii) Prevailing charge level. (A) Beginning in calendar year 1992, 
the prevailing charge level shall be calculated on a national basis.
    (B) The national prevailing charge level referred to in paragraph 
(g)(1)(ii)(A) of this section is the level that does not exceed the 
amount equivalent to the 80th percentile of billed charges made for 
similar services during the base period. The 80th percentile of charges 
shall be determined on the basis of statistical data and methodology 
acceptable to the Director, OCHAMPUS (or a designee).
    (C) For purposes of paragraph (g)(1)(ii)(B) of this section, the 
base period shall be a period of 12 calendar months and shall be 
adjusted once a year, unless the Director, OCHAMPUS, determines that a 
different period for adjustment is appropriate and publishes a notice to 
that effect in the Federal Register.
    (iii) Appropriate charge level. Beginning in calendar year 1992, the 
appropriate charge level shall be calculated on a national basis. The 
appropriate charge level for each procedure is the product of the two-
step process set forth in paragraphs (g)(1)(iii) (A) and (B) of this 
section. This process involves comparing the prior year's CMAC with the 
fully phased in Medicare fee. For years after the Medicare fee has been 
fully phased in, the comparison shall be to the current year Medicare 
fee. For any particular procedure for which comparable Medicare fee and 
CHAMPUS data are unavailable, but for which alternative data are 
available that the Director, OCHAMPUS (or designee) determines provide a 
reasonable approximation of relative value or price, the comparison may 
be based on such alternative data.
    (A) Step 1: Procedures classified. All procedures are classified 
into one of three categories, as follows:
    (1) Overpriced procedures. These are the procedures for which the 
prior year's national CMAC exceeds the Medicare fee.
    (2) Other procedures. These are procedures subject to the allowable 
charge method that are not included in either the overpriced procedures 
group or the underpriced procedures group.
    (3) Underpriced procedures. These are the procedures for which the 
prior year's national CMAC is less than the Medicare fee.
    (B) Step 2: Calculating appropriate charge levels. For each year, 
appropriate charge levels will be calculated by adjusting the prior 
year's CMAC as follows:
    (1) For overpriced procedures, the appropriate charge level for each 
procedure shall be the prior year's CMAC, reduced by the lesser of: the 
percentage by which it exceeds the Medicare fee or fifteen percent.
    (2) For other procedures, the appropriate charge level for each 
procedure shall be the same as the prior year's CMAC.
    (3) For underpriced procedures, the appropriate charge level for 
each procedure shall be the prior year's CMAC, increased by the lesser 
of: the percentage by which it is exceeded by the Medicare fee or the 
Medicare Economic Index.
    (C) Special rule for cases in which the CHAMPUS appropriate charge 
was prematurely reduced. In any case in which a recalculation of the 
Medicare fee results in a Medicare rate higher than the CHAMPUS 
appropriate charge for a procedure that had been considered an 
overpriced procedure, the reduction in the CHAMPUS appropriate charge 
shall be restored up to the level of the recalculated Medicare rate.
    (D) Special rule for cases in which the national CMAC is less than 
the Medicare rate.

    Note: This paragraph will be implemented when CMAC rates are 
published.

    In any case in which the national CMAC calculated in accordance with 
paragraphs (h)(1)(i) through (iii) of this section is less than the 
Medicare rate,

[[Page 292]]

the Director, TSO, may determine that the use of the Medicare Economic 
Index under paragraph (h)(1)(iii)(B) of this section will result in a 
CMAC rate below the level necessary to assure that beneficiaries will 
retain adequate access to health care services. Upon making such a 
determination, the Director, TSO, may increase the national CMAC to a 
level not greater than the Medicare rate.
    (iv) Calculating CHAMPUS Maximum Allowable Charge levels for 
localities.
    (A) In general. The national CHAMPUS Maximum Allowable Charge level 
for each procedure will be adjusted for localities using the same (or 
similar) geographical areas and the same geographic adjustment factors 
as are used for determining allowable charges under Medicare.
    (B) Special locality-based phase-in provision.
    (1) In general. Beginning with the recalculation of CMACS for 
calendar year 1993, the CMAC in a locality will not be less than 72.25 
percent of the maximum charge level in effect for that locality on 
December 31, 1991. For recalculations of CMACs for calendar years after 
1993, the CMAC in a locality will not be less than 85 percent of the 
CMAC in effect for that locality at the end of the prior calendar year.
    (2) Exception. The special locality-based phase-in provision 
established by paragraph (g)(1)(iv)(B)(1) of this section shall not be 
applicable in the case of any procedure code for which there were not 
CHAMPUS claims in the locality accounting for at least 50 services.
    (C) Special locality-based waivers of reductions to assure adequate 
access to care. Beginning with the recalculation of CMACs for calendar 
year 1993, in the case of any procedure classified as an overpriced 
procedure pursuant to paragraph (g)(1)(iii)(A)(1) of this section, a 
reduction in the CMAC in a locality below the level in effect at the end 
of the previous calendar year that would otherwise occur pursuant to 
paragraphs (g)(1)(iii) and (g)(1)(iv) of this section may be waived 
pursuant to paragraph (g)(1)(iii)(C) of this section.
    (1) Waiver based on balanced billing rates. Except as provided in 
paragraph (g)(1)(iv)(C)(2) of this section such a reduction will be 
waived if there has been excessive balance billing in the locality for 
the procedure involved. For this purpose, the extent of balance billing 
will be determined based on a review of all services under the procedure 
code involved in the prior year (or most recent period for which data 
are available). If the number of services for which balance billing was 
not required was less than 60 percent of all services provided, the 
Director will determine that there was excessive balance billing with 
respect to that procedure in that locality and will waive the reduction 
in the CMAC that would otherwise occur. A decision by the Director to 
waive or not waive the reduction is not subject to the appeal and 
hearing procedures of Sec. 199.10.
    (2) Exception. As an exception to the paragraph (g)(1)(iv)(C)(1) of 
this section, the waiver required by that paragraph shall not be 
applicable in the case of any procedure code for which there were not 
CHAMPUS claims in the locality accounting for at least 50 services. A 
waiver may, however, be granted in such cases pursuant to paragraph 
(g)(1)(iv)(C)(3) of this section.
    (3) Waiver based on other evidence that adequate access to care 
would be impaired. The Director, OCHAMPUS may waive a reduction that 
would otherwise occur (or restore a reduction that was already taken) if 
the Director determines that available evidence shows that the reduction 
would impair adequate access. For this purpose, such evidence may 
include consideration of the number of providers in the locality who 
provide the affected services, the number of such providers who are 
CHAMPUS Participating Providers, the number of CHAMPUS beneficiaries in 
the area, and other relevant factors. Providers or beneficiaries in a 
locality may submit to the Director, OCHAMPUS a petition, together with 
appropriate documentation regarding relevant factors, for a 
determination that adequate access would be impaired. The Director, 
OCHAMPUS will consider and respond to all such petitions. Petitions may 
be filed at any time. Any petition received by the date which is 120 
days prior to the implementation of a recalculation of CMACs will be 
assured of consideration prior

[[Page 293]]

to that implementation. The Director, OCHAMPUS may establish procedures 
for handling petitions. A decision by the Director to waive or not waive 
a reduction is not subject to the appeal and hearing procedures of Sec. 
199.10.
    (D) Special locality-based exception to applicable CMACs to assure 
adequate beneficiary access to care. In addition to the authority to 
waive reductions under paragraph (h)(1)(iv)(C) of this section, the 
Director may authorize establishment of higher payment rates for 
specific services than would otherwise be allowable, under paragraph 
(h)(1) of this section, if the Director determines that available 
evidence shows that access to health care services is severely impaired. 
For this purpose, such evidence may include consideration of the number 
of providers in the locality who provide the affected services, the 
number of providers who are CHAMPUS participating providers, the number 
of CHAMPUS beneficiaries in the locality, the availability of military 
providers in the location or nearby, and any other factors the Director 
determines relevant.
    (1) Procedure. Providers or beneficiaries in a locality may submit 
to the Director, a petition, together with appropriate documentation 
regarding relevant factors, for a determination that adequate access to 
health care services is severely impaired. The Director, will consider 
and respond to all petitions. A decision to authorize a higher payment 
amount is subject to review and determination or modification by the 
Director at any time if circumstances change so that adequate access to 
health care services would no longer be severely impaired. A decision by 
the Director, to authorize, not authorize, terminate, or modify 
authorization of higher payment amounts is not subject to the appeal and 
hearing procedures of Sec. 199.10 of the part.
    (2) Establishing the higher payment rate(s). When the Director, 
determines that beneficiary access to health care services in a locality 
is severely impaired, the Director may establish the higher payment 
rate(s) as he or she deems appropriate and cost-effective through one of 
the following methodologies to assure adequate access:
    (i) A percent factor may be added to the otherwise applicable 
payment amount allowable under paragraph (h)(1) of this section;
    (ii) A prevailing charge may be calculated, by applying the 
prevailing charge methodology of paragraph (h)(1)(ii) of this section to 
a specific locality (which need not be the same as the localities used 
for purposes of paragraph (h)(1)(iv)(A) of this section; or another 
government payment rate may be adopted, for example, an applicable state 
Medicaid rate).
    (3) Application of higher payment rates. Higher payment rates 
defined under paragraph (h)(1)(iv)(D) of this section may be applied to 
all similar services performed in a locality, or, if circumstances 
warrant, a new locality may be defined for application of the higher 
payments. Establishment of a new locality may be undertaken where access 
impairment is localized and not pervasive across the existing locality. 
Generally, establishment of a new, more specific locality will occur 
when the area is remote so that geographical characteristics and other 
factors significantly impair transportation through normal means to 
health care services routinely available within the existing locality.
    (E) Special locality-based exception to applicable CMACs to ensure 
an adequate TRICARE Prime preferred network. The Director, may authorize 
reimbursements to health care providers participating in a TRICARE 
preferred provider network under Sec. 199.17(p) of this part at rates 
higher than would otherwise be allowable under paragraph (h)(1) of this 
section, if the Director, determines that application of the higher 
rates is necessary to ensure the availability of an adequate number and 
mix of qualified health care providers in a network in a specific 
locality. This authority may only be used to ensure adequate networks in 
those localities designated by the Director, as requiring TRICAR 
preferred provider networks, not in localities in which preferred 
provider networks have been suggested or established but are not 
determined by the Director to be necessary. Appropriate evidence for 
determining that higher rates are necessary

[[Page 294]]

may include consideration of the number of available primary care and 
specialist providers in the network locality, availability (including 
reassignment) of military providers in the location or nearby, the 
appropriate mix of primary care and specialists needed to satisfy demand 
and meet appropriate patient access standards (appointment/waiting time, 
travel distance, etc.), the efforts that have been made to create an 
adequate network, other cost-effective alternatives, and other relevant 
factors. The Director, may establish procedures by which exceptions to 
applicable CMACs are requested and approved or denied under paragraph 
(h)(1)(iv)(E) of this section. A decision by the Director, to authorize 
or deny an exception is not subject to the appeal and hearing procedures 
of Sec. 199.10. When the Director, determines that it is necessary and 
cost-effective to approve a higher rate or rates in order to ensure the 
availability of an adequate number of qualified health care providers in 
a network in a specific locality, the higher rate may not exceed the 
lesser of the following:
    (1) The amount equal to the local fee for service charge for the 
service in the service area in which the service is provided as 
determined by the Director, based on one or more of the following 
payment rates:
    (i) Usual, customary, and reasonable;
    (ii) The Health Care Financing Administration's Resource Based 
Relative Value Scale;
    (iii) Negotiated fee schedules;
    (iv) Global fees; or
    (v) Sliding scale individual fee allowances.
    (2) The amount equal to 115 percent of the otherwise allowable 
charge under paragraph (h)(1) of the section for the service.
    (v) Special rules for 1991.
    (A) Appropriate charge levels for care provided on or after January 
1, 1991, and before the 1992 appropriate levels take effect shall be the 
same as those in effect on December 31, 1990, except that appropriate 
charge levels for care provided on or after October 7, 1991, shall be 
those established pursuant to this paragraph (g)(1)(v) of this section.
    (B) Appropriate charge levels will be established for each locality 
for which a appropriate charge level was in effect immediately prior to 
October 7, 1991. For each procedure, the appropriate charge level shall 
be the prevailing charge level in effect immediately prior to October 7, 
1991, adjusted as provided in (g)(1)(v)(B) (1) through (3) of this 
section.
    (1) For each overpriced procedure, the level shall be reduced by 
fifteen percent. For this purpose, overpriced procedures are the 
procedures determined by the Physician Payment Review Commission to be 
overvalued pursuant to the process established under the Medicare 
program, other procedures considered overvalued in the Medicare program 
(for which Congress directed reductions in Medicare allowable levels for 
1991), radiology procedures and pathology procedures.
    (2) For each other procedure, the level shall remain unchanged. For 
this purpose, other procedures are procedures which are not overpriced 
procedures or primary care procedures.
    (3) For each primary care procedure, the level shall be adjusted by 
the MEI, as the MEI is applied to Medicare prevailing charge levels. For 
this purpose, primary care procedures include maternity care and 
delivery services and well baby care services.
    (C) For purposes of this paragraph (g)(i)(v), ``appropriate charge 
levels'' in effect at any time prior to October 7, 1991 shall mean the 
lesser of:
    (1) The prevailing charge levels then in effect, or
    (2) The fiscal year 1988 prevailing charge levels adjusted by the 
Medicare Economic Index (MEI), as the MEI was applied beginning in the 
fiscal year 1989.
    (vi) Special transition rule for 1992.
    (A) For purposes of calculating the national appropriate charge 
levels for 1992, the prior year's appropriate charge level for each 
service will be considered to be the level that does not exceed the 
amount equivalent to the 80th percentile of billed charges made for 
similar services during the base period of July 1, 1986 to June 30, 1987 
(determined as under paragraph (g)(1)(ii)(B) of this section), adjusted 
to calendar year 1991 based on the adjustments made for maximum CHAMPUS 
allowable charge levels through 1990

[[Page 295]]

and the application of paragraph (g)(1)(v) of this section for 1991.
    (B) The adjustment to calendar year 1991 of the product of paragraph 
(g)(1)(vi)(A) of this section shall be as follows:
    (1) For procedures other than those described in paragraph 
(g)(1)(vi)(B)(2) of this section, the adjustment to 1991 shall be on the 
same basis as that provided under paragraph (g)(1)(v) of this section.
    (2) For any procedure that was considered an overpriced procedure 
for purposes of the 1991 appropriate charge levels under paragraph 
(g)(1)(v) of this section for which the resulting 1991 appropriate 
charge level was less than 150 percent of the Medicare converted 
relative value unit, the adjustment to 1991 for purposes of the special 
transition rule for 1992 shall be as if the procedure had been treated 
under paragraph (g)(1)(v)(B)(2) of this section for purposes of the 1991 
appropriate charge level.
    (vii) Adjustments and procedural rules.
    (A) The Director, OCHAMPUS may make adjustments to the appropriate 
charge levels calculated pursuant to paragraphs (g)(1)(iii) and 
(g)(1)(v) of this section to correct any anomalies resulting from data 
or statistical factors, significant differences between Medicare-
relevant information and CHAMPUS-relevant considerations or other 
special factors that fairness requires be specially recognized. However, 
no such adjustment may result in reducing an appropriate charge level.
    (B) The Director, OCHAMPUS will issue procedural instructions for 
administration of the allowable charge method.
    (viii) Clinical laboratory services. The allowable charge for 
clinical diagnostic laboratory test services shall be calculated in the 
same manner as allowable charges for other individual health care 
providers are calculated pursuant to paragraphs (g)(1)(i) through 
(g)(1)(iv) of this section, with the following exceptions and 
clarifications.
    (A) The calculation of national prevailing charge levels, national 
appropriate charge levels and national CMACs for laboratory service 
shall begin in calendar year 1993. For purposes of the 1993 calculation, 
the prior year's national appropriate charge level or national 
prevailing charge level shall be the level that does not exceed the 
amount equivalent to the 80th percentile of billed charges made for 
similar services during the period July 1, 1991, through June 30, 1992 
(referred to in this paragraph (g)(1)(viii) of this section as the 
``base period'').
    (B) For purposes of comparison to Medicare allowable payment amounts 
pursuant to paragraph (g)(1)(iii) of this section, the Medicare national 
laboratory payment limitation amounts shall be used.
    (C) For purposes of establishing laboratory service local CMACs 
pursuant to paragraph (g)(1)(iv) of this section, the adjustment factor 
shall equal the ratio of the local average charge (standardized for the 
distribution of clinical laboratory services) to the national average 
charge for all clinical laboratory services during the base period.
    (D) For purposes of a special locality-based phase-in provision 
similar to that established by paragraph (g)(1)(iv)(B) of this section, 
the CMAC in a locality will not be less than 85 percent of the maximum 
charge level in effect for that locality during the base period.
    (ix) The allowable charge for physician assistant services other 
than assistant-at-surgery may not exceed 85 percent of the allowable 
charge for a comparable service rendered by a physician performing the 
service in a similar location. For cases in which the physician 
assistant and the physician perform component services of a procedure 
other than assistant-at-surgery (e.g., home, office or hospital visit), 
the combined allowable charge for the procedure may not exceed the 
allowable charge for the procedure rendered by a physician alone. The 
allowable charge for physician assistant services performed as an 
assistant-at-surgery may not exceed 65 percent of the allowable charge 
for a physician serving as an assistant surgeon when authorized as 
CHAMPUS benefits in accordance with the provisions of Sec. 
199.4(c)(3)(iii). Physician assistant services must be billed through 
the employing physician who must be an authorized CHAMPUS provider.

[[Page 296]]

    (x) A charge that exceeds the CHAMPUS Maximum Allowable Charge can 
be determined to be allowable only when unusual circumstances or medical 
complications justify the higher charge. The allowable charge may not 
exceed the billed charge under any circumstances.
    (2) Bonus payments in medically underserved areas. A bonus payment, 
in addition to the amount normally paid under the allowable charge 
methodology, may be made to physicians in medically underserved areas. 
For purposes of this paragraph, medically underserved areas are the same 
as those determined by the Secretary of Health and Human Services for 
the Medicare program. Such bonus payments shall be equal to the bonus 
payments authorized by Medicare, except as necessary to recognize any 
unique or distinct characteristics or requirements of the TRICARE 
program, and as described in instructions issued by the Executive 
Director, TRICARE Management Activity. If the Department of Health and 
Human Services acts to amend or remove the provision for bonus payments 
under Medicare, TRICARE likewise may follow Medicare in amending or 
removing provision for such payments.
    (3) All-inclusive rate. Claims from individual health-care 
professional providers for services rendered to CHAMPUS beneficiaries 
residing in an RTC that is either being reimbursed on an all-inclusive 
per diem rate, or is billing an all-inclusive per diem rate, shall be 
denied; with the exception of independent health-care professionals 
providing geographically distant family therapy to a family member 
residing a minimum of 250 miles from the RTC or covered medical services 
related to a nonmental health condition rendered outside the RTC. 
Reimbursement for individual professional services is included in the 
rate paid the institutional provider.
    (4) Alternative method. The Director, OCHAMPUS, or a designee, may, 
subject to the approval of the ASD(HA), establish an alternative method 
of reimbursement designed to produce reasonable control over health care 
costs and to ensure a high level of acceptance of the CHAMPUS-determined 
charge by the individual health-care professionals or other 
noninstitutional health-care providers furnishing services and supplies 
to CHAMPUS beneficiaries. Alternative methods may not result in 
reimbursement greater than the allowable charge method above.
    (k) Reimbursement of Durable Medical Equipment, Prosthetics, 
orthotics and Supplies 9DMEPOS). Reimbursement of DMEPOS may be based on 
the same amounts established under the Centers for Medicare and Medicaid 
Services (CMS) DMEPOS fee schedule under 42 CFR part 414, subpart D.
    (l) Reimbursement Under the Military-Civilian Health Services 
Partnership Program. The Military-Civilian Health Services Partnership 
Program, as authorized by section 1096, chapter 55, title 10, provides 
for the sharing of staff, equipment, and resources between the civilian 
and military health care system in order to achieve more effective, 
efficient, or economical health care for authorized beneficiaries. 
Military treatment facility commanders, based upon the authority 
provided by their respective Surgeons General of the military 
departments, are responsible for entering into individual partnership 
agreements only when they have determined specifically that use of the 
Partnership Program is more economical overall to the Government than 
referring the need for health care services to the civilian community 
under the normal operation of the CHAMPUS Program. (See paragraph (p) of 
Sec. 199.1 for general requirements of the Partnership Program.)
    (1) Reimbursement of institutional health care providers. 
Reimbursement of institutional health care providers under the 
Partnership Program shall be on the same basis as non-Partnership 
providers.
    (2) Reimbursement of individual health-care professionals and other 
non-institutional health care providers. Reimbursement of individual 
health care professionals and other non-institutional health care 
providers shall be on the same basis as non-Partnership providers as 
detailed in paragraph (g) of this section.
    (m) Accommodation of Discounts Under Provider Reimbursement Methods.

[[Page 297]]

    (1) General rule. The Director. OCHAMPUS (or designee) has authority 
to reimburse a provider at an amount below the amount usually paid 
pursuant to this section when, under a program approved by the Director, 
the provider has agreed to the lower amount.
    (2) Special applications. The following are examples of applications 
of the general rule; they are not all inclusive.
    (i) In the case and individual health care professionals and other 
non-institutional providers, if the discounted fee is below the 
provider's normal billed charge and the prevailing charge level (see 
paragraph (g) of this section), the discounted fee shall be the 
provider's actual billed charge and the CHAMPUS allowable charge.
    (ii) In the case of institutional providers normally paid on the 
basis of a pre-set amount (such as DRG-based amount under paragraph 
(a)(1) of this section or per-diem amount under paragraph (a)(2) of this 
section), if the discount rate is lower than the pre-set rate, the 
discounted rate shall be the CHAMPUS-determined allowable cost. This is 
an exception to the usual rule that the pre-set rate is paid regardless 
of the institutional provider's billed charges or other factors.
    (3) Procedures.
    (i) This paragraph applies only when both the provider and the 
Director have agreed to the discounted payment rate. The Director's 
agreement may be in the context of approval of a program that allows for 
such discounts.
    (ii) The Director of OCHAMPUS may establish uniform terms, 
conditions and limitations for this payment method in order to avoid 
administrative complexity.
    (n) Outside the United States. The Director, OCHAMPUS, or a 
designee, shall determine the appropriate reimbursement method or 
methods to be used in the extension of CHAMPUS benefits for otherwise 
covered medical services or supplies provided by hospitals or other 
institutional providers, physicians or other individual professional 
providers, or other providers outside the United States.
    (o) Implementing Instructions. The Director, OCHAMPUS, or a 
designee, shall issue CHAMPUS policies, instructions, procedures, and 
guidelines, as may be necessary to implement the intent of this section.

[55 FR 13266, Apr. 10, 1990, as amended at 55 FR 31180, Aug. 1, 1990; 55 
FR 42562, Oct. 22, 1990; 55 FR 43342, Oct. 29, 1990; 56 FR 44006, Sept. 
6, 1991; 56 FR 50273, Oct. 4, 1991; 58 FR 35408, July 1, 1993; 58 FR 
51239, Oct. 1, 1993; 58 FR 58961, Nov. 5, 1993; 60 FR 6019, Feb. 1, 
1995; 60 FR 12437, Mar. 7, 1995; 60 FR 52094, Oct. 5, 1995; 63 FR 7287, 
Feb. 13, 1998; 63 FR 48446, Sept. 10, 1998; 63 FR 56082, Oct. 21, 1998; 
64 FR 60671, Nov. 8, 1999; 65 FR 41003, July 3, 2000; 67 FR 45172, Aug. 
28, 2001; 67 FR 18115, Apr. 15, 2002; 67 FR 40604, June 13, 2002; 69 FR 
60555, Oct. 12, 2004]

    Editorial Note: The following text, appearing at 63 FR 48445, Sept. 
10, 1998, could not be incorporated into Sec. 199.14 because it was not 
mentioned in the amendatory instruction. For the convenience of the 
user, the text is set forth as follows:

Sec. 199.14  Provider reimbursement methods.

    (a) * * *
    (1) * * *

                                * * * * *

    (iii) * * *
    (B) Empty and low-volume DRGs. For any DRG with less than ten (10) 
occurrences in the CHAMPUS database, the Director, TSO, or designee, has 
the authority to consider alternative methods for estimating CHAMPUS 
weights in these low-volume DRG categories.

                                * * * * *

    (D) * * *
    (1) Differentiate large urban and other area charges. All charges in 
the database shall be sorted into large urban and other area groups 
(using the same definitions for these categories used in the Medicare 
program. * * *

                                * * * * *

    (5) Preliminary base year standardized amount. A preliminary base 
year standardized amount shall be calculated by summing all costs in the 
database applicable to the large urban or other area group and dividing 
by the total number of discharges in the respective group.

                                * * * * *

    (E) * * *
    (1) * * *
    (i) * * *
    (A) Short-stay outliers. Any discharge with a length-of-stay (LOS) 
less than 1.94 standard deviations from the DRG's arithmetic LOS

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shall be classified as a short-stay outlier. Short-stay outliers shall 
be reimbursed at 200 percent of the per diem rate for the DRG for each 
covered day of the hospital stay, not to exceed the DRG amount. The per 
diem rate shall equal the DRG amount divided by the arithmetic mean 
length-of-stay for the DRG.
    (B) Long-stay outliers. Any discharge (except for neonatal services 
and services in children's hospitals) which has a length-of-stay (LOS) 
exceeding a threshold established in accordance with the criteria used 
for the Medicare Prospective Payment System as contained in 42 CFR 
412.82 shall be classified as a long-stay outliner. Any discharge for 
neonatal services or for services in a children's hospital which has a 
LOS exceeding the lesser of 1.94 standard deviations or 17 days from the 
DRG's arithmetic mean LOS also shall be classified as a long-stay 
outlier. Long-stay outliers shall be reimbursed the DRG-based amount 
plus a percentage (as established for the Medicare Prospective Payment 
System) of the per diem rate for the DRG for each covered day of care 
beyond the long-stay outlier threshold. The per diem rate shall equal 
the DRG amount divided by the arithmetic mean LOS for the DRG. For 
admissions on or after October 1, 1997, the long stay outlier has been 
eliminated for all cases except children's hospitals and neonates. For 
admissions on or after October 1, 1998, the long stay outlier has been 
eliminated for children's hospitals and neonates.
    (ii) * * *
    (A) Cost outliers except those in children's hospitals or for 
neonatal services. Any discharge which has standardized costs that 
exceed a threshold established in accordance with the criteria used for 
the Medicare Prospective Payment System as contained in 42 CFR 412.84 
shall qualify as a cost outlier. The standardized costs shall be 
calculated by multiplying the total charges by the factor described in 
Sec. 199.14(a)(1)(iii)(D)(4) and adjusting this amount for indirect 
medical education costs. Cost outliers shall be reimbursed the DRG-based 
amount plus a percentage (as established for the Medicare Prospective 
Payment System) of all costs exceeding the threshold. Effective with 
admissions occurring on or after October 1, 1997, the standardized costs 
are no longer adjusted for indirect medical education costs.
    (B) Cost outliers in children's hospitals and for neonatal services. 
Any discharge for services in a children's hospital or for neonatal 
services which has standardized costs that exceed a threshold of the 
greater of two times the DRG-based amount or $13,500 shall qualify as a 
cost outlier. The standardized costs shall be calculated by multiplying 
the total charges by the factor described in Sec. 
199.14(a)(1)(iii)(D)(4) (adjusted to include average capital and direct 
medical education costs) and adjusting this amount for indirect medical 
education costs. Cost outliers for services in children's hospitals and 
for neonatal services shall be reimbursed the DRG-based amount plus a 
percentage (as established for the Medicare Prospective Payment System) 
of all costs exceeding the threshold. Effective with admissions 
occurring on or after October 1, 1998, standardized costs are no longer 
adjusted for indirect medical education costs. In addition, CHAMPUS will 
calculate the outlier payments that would have occurred at each of the 
59 Children's hospitals under the FY99 outlier policy for all cases that 
would have been outliers under the FY94 policies using the most accurate 
data available in September 1998. A ratio will be calculated which 
equals the level of outlier payments that would have been made under the 
FY94 outlier policies and the outlier payments that would be made if the 
FY99 outlier policies had applied to each of these potential outlier 
cases for these hospitals. The ratio will be calculated across all 
outlier claims for the 59 hospitals and will not be hospital specific. 
The ratio will be used to increase cost outlier payments in FY 1999 and 
FY 2000, unless the hospital has a negotiated agreement with a managed 
care support contractor which would affect this payment. For hospitals 
with managed care support agreements which affect these payments, 
CHAMPUS will apply these payments if the increased payments would be 
consistent with the agreements. In FY 2000 the ratio of outlier payments 
(long stay and cost) that would have occurred under the FY 94 policy and 
actual cost outlier payments made under the FY 99 policy will be 
recalculated. If the ratio has changed significantly, the ratio will be 
revised for use in FY 2001 and thereafter. In FY 2002, the actual cost 
outlier cases in FY 2000 and 2001 will be reexamined. The ratio of 
outlier payments that would have occurred under the FY94 policy and the 
actual cost outlier payments made under the FY 2000 and FY 2001 
policies. If the ratio has changed significantly, the ratio will be 
revised for use in FY 2003.

                                * * * * *

    (G) * * *
    (3) Information necessary for payment of capital and direct medical 
education costs. All hospitals subject to the CHAMPUS DRG-based payment 
system, except for children's hospitals, may be reimbursed for allowed 
capital and direct medical education costs by submitting a request to 
the CHAMPUS contractor. Beginning October 1, 1998, such request shall be 
filed with CHAMPUS on or before the last day of the twelfth month 
following the close of the hospitals' cost reporting period, and shall 
cover the one-year period corresponding to the hospital's Medicare cost-
reporting period. The first such request may cover a period of less than 
a full year--

[[Page 299]]

from the effective date of the CHAMPUS DRG-based payment system to the 
end of the hospital's Medicare cost-reporting period. All costs reported 
to the CHAMPUS contractor must correspond to the costs reported on the 
hospital's Medicare cost report. An extension of the due date for filing 
the request may only be granted if an extension has been granted by HCFA 
due to a provider's operations being significantly adversely affected 
due to extraordinary circumstances over which the provider has no 
control, such as flood or fire. (If these costs change as a result of a 
subsequent audit by Medicare, the revised costs are to be reported to 
the hospital's CHAMPUS contractor within 30 days of the date the 
hospital is notified of the change.) The request must be signed by the 
hospital official responsible for verifying the amounts and shall 
contain the following information.

                                * * * * *

    (d) * * *
    (3) * * *
    (iv) Step 4: standard payment amount per group. The standard payment 
amount per group will be the volume weighted median per procedure cost 
for the procedures in that group. For cases in which the standard 
payment amount per group exceeds the CHAMPUS-determined inpatient 
allowable amount, the Director, TSO or his designee, may make 
adjustments.

                                * * * * *

    (h) Reimbursement of individual health care professionals and other 
non-institutional, non-professional providers. The CHAMPUS-determined 
reasonable charge (the amount allowed by CHAMPUS) for the service of an 
individual health care professional or other non-institutional, non-
professional provider (even if employed by or under contract to an 
institutional provider) shall be determined by one of the following 
methodologies, that is, whichever is in effect in the specific 
geographic location at the time covered services and supplies are 
provided to a CHAMPUS beneficiary.

                                * * * * *



Sec. 199.15  Quality and utilization review peer review organization 
program.

    (a) General. (1) Purpose. The purpose of this section is to 
establish rules and procedures for the CHAMPUS Quality and Utilization 
Review Peer Review Organization program.
    (2) Applicability of program. All claims submitted for health 
services under CHAMPUS are subject to review for quality of care and 
appropriate utilization. The Director, OCHAMPUS shall establish 
generally accepted standards, norms and criteria as are necessary for 
this program of utilization and quality review. These standards, norms 
and criteria shall include, but not be limited to, need for inpatient 
admission or inpatient or outpatient service, length of inpatient stay, 
intensity of care, appropriateness of treatment, and level of 
institutional care required. The Director, OCHAMPUS may issue 
implementing instructions, procedures and guidelines for retrospective, 
concurrent and prospective review.
    (3) Contractor implementation. The CHAMPUS Quality and Utilization 
Review Peer Review Organization program may be implemented through 
contracts administered by the Director, OCHAMPUS. These contractors may 
include contractors that have exclusive functions in the area of 
utilization and quality review, fiscal intermediary contractors (which 
perform these functions along with a broad range of administrative 
services), and managed care contractors (which perform a range of 
functions concerning management of the delivery and financing of health 
care services under CHAMPUS). Regardless of the contractors involved, 
utilization and quality review activities follow the same standards, 
rules and procedures set forth in this section, unless otherwise 
specifically provided in this section or elsewhere in this part.
    (4) Medical issues affected. The CHAMPUS Quality and Utilization 
Review Peer Review Organization program is distinguishable in purpose 
and impact from other activities relating to the administration and 
management of CHAMPUS in that the Peer Review Organization program is 
concerned primarily with medical judgments regarding the quality and 
appropriateness of health care services. Issues regarding such matters 
as benefit limitations are similar, but, if not determined on the basis 
of medical judgments, are governed by CHAMPUS rules and procedures other 
than those provided in this section. (See, for example, Sec. 199.7 
regarding claims submission, review and payment.) Based on this purpose, 
a

[[Page 300]]

major attribute of the Peer Review Organization program is that medical 
judgments are made by (directly or pursuant to guidelines and subject to 
direct review) reviewers who are peers of the health care providers 
providing the services under review.
    (5) Provider responsibilities. Because of the dominance of medical 
judgments in the quality and utilization review program, principal 
responsibility for complying with program rules and procedures rests 
with health care providers. For this reason, there are limitations, set 
forth in this section and in Sec. 199.4(h), on the extent to which 
beneficiaries may be held financially liable for health care services 
not provided in conformity with rules and procedures of the quality and 
utilization review program concerning medical necessity of care.
    (6) Medicare rules used as model. The CHAMPUS Quality and 
Utilization Review Peer Review Organization program, based on specific 
statutory authority, follows many of the quality and utilization review 
requirements and procedures in effect for the Medicare Peer Review 
Organization program, subject to adaptations appropriate for the CHAMPUS 
program. In recognition of the similarity of purpose and design between 
the Medicare and CHAMPUS PRO programs, and to avoid unnecessary 
duplication of effort, the CHAMPUS Quality and Utilization Review Peer 
Review Organization program will have special procedures applicable to 
supplies and services furnished to Medicare-eligible CHAMPUS 
beneficiaries. These procedures will enable CHAMPUS normally to rely 
upon Medicare determinations of medical necessity and appropriateness in 
the processing of CHAMPUS claims as a second payer to Medicare. As a 
general rule, only in cases involving Medicare-eligible CHAMPUS 
beneficiaries where Medicare payment for services and supplies is denied 
for reasons other than medical necessity and appropriateness will the 
CHAMPUS claim be subject to review for quality of care and appropriate 
utilization under the CHAMPUS PRO program. TRICARE will continue to 
perform a medical necessity and appropriateness review for quality of 
care and appropriate utilization under the CHAMPUS PRO program where 
required by statute, such as inpatient mental health services in excess 
of 30 days in any year.
    (b) Objectives and general requirements of review system--(1) In 
general. Broadly, the program of quality and utilization review has as 
its objective to review the quality, completeness and adequacy of care 
provided, as well as its necessity, appropriateness and reasonableness.
    (2) Payment exclusion for services provided contrary to utilization 
and quality standards. (i) In any case in which health care services are 
provided in a manner determined to be contrary to quality or necessity 
standards established under the quality and utilization review program, 
payment may be wholly or partially excluded.
    (ii) In any case in which payment is excluded pursuant to paragraph 
(b)(2)(i) of this section, the patient (or the patient's family) may not 
be billed for the excluded services.
    (iii) Limited exceptions and other special provisions pertaining to 
the requirements established in paragraphs (b)(2) (i) and (ii) of this 
section, are set forth in Sec. 199.4(h).
    (3) Review of services covered by DRG-based payment system. 
Application of these objectives in the context of hospital services 
covered by the DRG-based payment system also includes a validation of 
diagnosis and procedural information that determines CHAMPUS 
reimbursement, and a review of the necessity and appropriateness of care 
for which payment is sought on an outlier basis.
    (4) Preauthorization and other utilization review procedures-- (i) 
In general. all health care services for which payment is sought under 
TRICARE are subject to review for appropriateness of utilization as 
determined by the Director, TRICARE Management Activity, or a designee.
    (A) The procedures for this review may be prospective (before the 
care is provided), concurrent (while the care is in process), or 
retrospective (after the care has been provided). Regardless of the 
procedures of this utilization review, the same generally accepted

[[Page 301]]

standards, norms and criteria for evaluating the medical necessity, 
appropriateness and reasonableness of the care involved shall apply. The 
Director, TRICARE Management Activity, or a designee, shall establish 
procedures for conducting reviews, including types of health care 
services for which preauthorization or concurrent review shall be 
required. Preauthorization or concurrent review may be required for 
categories of health care services. Except where required by law, the 
categories of health care services for which preauthorization or 
concurrent review is required may vary in different geographical 
locations or for different types of providers.
    (B) For healthcare services provided under TRICARE contracts entered 
into by the Department of Defense after October 30, 2000, medical 
necessity preauthorization will not be required for referrals for 
specialty consultation appointment services requested by primary care 
providers or specialty providers when referring TRICARE Prime 
beneficiaries for specialty consultation appointment services within the 
TRICARE contractor's network. However, the lack of medical necessity 
preauthorization requirements for consultative appointment services does 
not mean that non-emergent admissions or invasive diagnostic or 
therapeutic procedures which in and of themselves constitute categories 
of health care services related to, but beyond the level of the 
consultation appointment service, are not subject to medical necessity 
prior authorization. In fact many such health care services may continue 
to require medical necessity prior authorization as determined by the 
Director, TRICARE Management Activity, or a designee. TRICARE Prime 
beneficiaries are also required to obtain preauthorization before 
seeking health care services from a non-network provider.
    (ii) Preauthorization procedures. With respect to categories of 
health care (inpatient or outpatient) for which preauthorization is 
required, the following procedures shall apply:
    (A) The requirement for preauthorization shall be widely publicized 
to beneficiaries and providers.
    (B) All requests for preauthorization shall be responded to in 
writing. Notification of approval or denial shall be sent to the 
beneficiary. Approvals shall specify the health care services and 
supplies approved and identify any special limits or further 
requirements applicable to the particular case.
    (C) An approved preauthorization shall state the number of days, 
appropriate for the type of care involved, for which it is valid. In 
general, preauthorizations will be valid for 30 days. If the services or 
supplies are not obtained within the number of days specified, a new 
preauthorization request is required. For organ and stem cell 
transplants, the preauthorization shall remain in effect as long as the 
beneficiary continues to meet the specific transplant criteria set forth 
in the TRICARE/CHAMPUS Policy Manual, or until the approved transplant 
occurs.
    (D) For healthcare services provided under TRICARE contracts entered 
into by the Department of Defense after October 30, 2000, medical 
necessity preauthorization for specialty consultation appointment 
services within the TRICARE contractor's network will not be required. 
However, the Director, TRICARE Management Activity, or designee, may 
continue to require or waive medical necessity prior (or pre) 
authorization for other categories of other health care services based 
on best business practice.
    (iii) Payment reduction for noncompliance with required utilization 
review procedures. (A) Paragraph (b)(4)(iii) of this section applies to 
any case in which:
    (1) A provider was required to obtain preauthorization or continued 
stay (in connection with required concurrent review procedures) 
approval.
    (2) The provider failed to obtain the necessary approval; and
    (3) The health care services have not been disallowed on the basis 
of necessity, appropriateness or reasonableness.

In such a case, reimbursement will be reduced, unless such reduction is 
waived based on special circumstances.

[[Page 302]]

    (B) In a case described in paragraph (b)(4)(iii)(A) of this section, 
reimbursement will be reduced, unless such reduction is waived based on 
special circumstances. The amount of this reduction shall be at least 
ten percent of the amount otherwise allowable for services for which 
preauthorization (including preauthorization for continued stays in 
connection with concurrent review requirements) approval should have 
been obtained, but was not obtained.
    (C) The payment reduction set forth in paragraph (b)(4)(iii)(B) of 
this section may be waived by the Director, OCHAMPUS when the provider 
could not reasonably have been expected to know of the preauthorization 
requirement or some other special circumstance justifies the waiver.
    (D) Services for which payment is disallowed under paragraph 
(b)(4)(iii) of this section may not be billed to the patient (or the 
patient's family).
    (c) Hospital cooperation. All hospitals which participate in CHAMPUS 
and submit CHAMPUS claims are required to provide all information 
necessary for CHAMPUS to properly process the claims. In order for 
CHAMPUS to be assured that services for which claims are submitted meet 
quality of care standards, hospitals are required to provide the Peer 
Review Organization (PRO) responsible for quality review with all the 
information, within timeframes to be established by OCHAMPUS, necessary 
to perform the review functions required by this paragraph. 
Additionally, all participating hospitals shall provide CHAMPUS 
beneficiaries, upon admission, with information about the admission and 
quality review system including their appeal rights. A hospital which 
does not cooperate in this activity shall be subject to termination as a 
CHAMPUS-authorized provider.
    (1) Documentation that the beneficiary has received the required 
information about the CHAMPUS PRO program must be maintained in the same 
manner as is the notice required for the Medicare program by 42 CFR 
466.78(b).
    (2) The physician acknowledgment required for Medicare under 42 CFR 
412.46 is also required for CHAMPUS as a condition for payment and may 
be satisfied by the same statement as required for Medicare, with 
substitution or addition of ``CHAMPUS'' when the word ``Medicare'' is 
used.
    (3) Participating hospitals must execute a memorandum of 
understanding with the PRO providing appropriate procedures for 
implementation of the PRO program.
    (4) Participating hospitals may not charge a CHAMPUS beneficiary for 
inpatient hospital services excluded on the basis of Sec. 199.4(g)(1) 
(not medically necessary), Sec. 199.4(g)(3) (inappropriate level), or 
Sec. 199.4(g)(7) (custodial care) unless all of the conditions 
established by 42 CFR 412.42(c) with respect to Medicare beneficiaries 
have been met with respect to the CHAMPUS beneficiary. In such cases in 
which the patient requests a PRO review while the patient is still an 
inpatient in the hospital, the hospital shall provide to the PRO the 
records required for the review by the close of business of the day the 
patient requests review, if such request was made before noon. If the 
hospital fails to provide the records by the close of business, that day 
and any subsequent working day during which the hospital continues to 
fail to provide the records shall not be counted for purposes of the 
two-day period of 42 CFR 412.42(c)(3)(ii).
    (d) Areas of review--(1) Admissions. The following areas shall be 
subject to review to determine whether inpatient care was medically 
appropriate and necessary, was delivered in the most appropriate setting 
and met acceptable standards of quality. This review may include 
preadmission or prepayment review when appropriate.
    (i) Transfers of CHAMPUS beneficiaries from a hospital or hospital 
unit subject to the CHAMPUS DRG-based payment system to another hospital 
or hospital unit.
    (ii) CHAMPUS admissions to a hospital or hospital unit subject to 
the CHAMPUS DRG-based payment system which occur within a certain period 
(specified by OCHAMPUS) of discharge from a hospital or hospital unit 
subject to the CHAMPUS DRG-based payment system.

[[Page 303]]

    (iii) A random sample of other CHAMPUS admissions for each hospital 
subject to the CHAMPUS DRG-based payment system.
    (iv) CHAMPUS admissions in any DRGs which have been specifically 
identified by OCHAMPUS for review or which are under review for any 
other reason.
    (2) DRG validation. The review organization responsible for quality 
of care reviews shall be responsible for ensuring that the diagnostic 
and procedural information reported by hospitals on CHAMPUS claims which 
is used by the fiscal intermediary to assign claims to DRGs is correct 
and matches the information contained in the medical records. In order 
to accomplish this, the following review activities shall be done.
    (i) Perform DRG validation reviews of each case under review.
    (ii) Review of claim adjustments submitted by hospitals which result 
in the assignment of a higher weighted DRG.
    (iii) Review for physician's acknowledgement of annual receipt of 
the penalty statement as contained in the Medicare regulation at 42 CFR 
412.46.
    (iv) Review of a sample of claims for each hospital reimbursed under 
the CHAMPUS DRG-based payment system. Sample size shall be determined 
based upon the volume of claims submitted.
    (3) Outlier review. Claims which qualify for additional payment as a 
long-stay outlier or as a cost-outlier shall be subject to review to 
ensure that the additional days or costs were medically necessary and 
appropriate and met all other requirements for CHAMPUS coverage. In 
addition, claims which qualify as short-stay outliers shall be reviewed 
to ensure that the admission was medically necessary and appropriate and 
that the discharge was not premature.
    (4) Procedure review. Claims for procedures identified by OCHAMPUS 
as subject to a pattern of abuse shall be the subject of intensified 
quality assurance review.
    (5) Other review. Any other cases or types of cases identified by 
OCHAMPUS shall be subject to focused review.
    (e) Actions as a result of review--(1) Findings related to 
individual claims. If it is determined, based upon information obtained 
during reviews, that a hospital has misrepresented admission, discharge, 
or billing information, or is found to have quality of care defects, or 
has taken an action that results in the unnecessary admissions of an 
individual entitled to benefits, unnecessary multiple admission of an 
individual, or other inappropriate medical or other practices with 
respect to beneficiaries or billing for services furnished to 
beneficiaries, the PRO, in conjunction with the fiscal intermediary, 
shall, as appropriate:
    (i) Deny payment for or recoup (in whole or in part) any amount 
claimed or paid for the inpatient hospital and professional services 
related to such determination.
    (ii) Require the hospital to take other corrective action necessary 
to prevent or correct the inappropriate practice.
    (iii) Advise the provider and beneficiary of appeal rights, as 
required by Sec. 199.10 of this part.
    (iv) Notify OCHAMPUS of all such actions.
    (2) Findings related to a pattern of inappropriate practices. In all 
cases where a pattern of inappropriate admissions and billing practices 
that have the effect of circumventing the CHAMPUS DRG-based payment 
system is identified, OCHAMPUS shall be notified of the hospital and 
practice involved.
    (3) Revision of coding relating to DRG validation. The following 
provisions apply in connection with the DRG validation process set forth 
in paragraph (d)(2) of this section.
    (i) If the diagnostic and procedural information in the patient's 
medical record is found to be inconsistent with the hospital's coding or 
DRG assignment, the hospital's coding on the CHAMPUS claim will be 
appropriately changed and payments recalculated on the basis of the 
appropriate DRG assignment.
    (ii) If the information stipulated under paragraph (d)(2) of this 
section is found not to be correct, the PRO will change the coding and 
assign the appropriate DRG on the basis of the changed coding.

[[Page 304]]

    (f) Special procedures in connection with certain types of health 
care services or certain types of review activities--(1) In general. 
Many provisions of this section are directed to the context of services 
covered by the CHAMPUS DRG-based payment system. This section, however, 
is also applicable to other services. In addition, many provisions of 
this section relate to the context of peer review activities performed 
by Peer Review Organizations whose sole functions for CHAMPUS relate to 
the Quality and Utilization Review Peer Review Organization program. 
However, it also applies to review activities conducted by contractors 
who have responsibilities broader than those related to the quality and 
utilization review program. Paragraph (f) of this section authorizes 
certain special procedures that will apply in connection with such 
services and such review activities.
    (2) Services not covered by the DRG-based payment system. In 
implementing the quality and utilization review program in the context 
of services not covered by the DRG-based payment system, the Director, 
OCHAMPUS may establish procedures, appropriate to the types of services 
being reviewed, substantively comparable to services covered by the DRG-
based payment system regarding obligations of providers to cooperate in 
the quality and utilization review program, authority to require 
appropriate corrective actions and other procedures. The Director, 
OCHAMPUS may also establish such special, substantively comparable 
procedures in connection with review of health care services which, 
although covered by the DRG-based payment method, are also affected by 
some other special circumstances concerning payment method, nature of 
care, or other potential utilization or quality issue.
    (3) Peer review activities by contractors also performing other 
administration or management functions--(i) Sole-function PRO versus 
multi-function PRO. In all cases, peer review activities under the 
Quality and Utilization Review Peer Review Organization program are 
carried out by physicians and other qualified health care professionals, 
usually under contract with OCHAMPUS. In some cases, the Peer Review 
Organization contractor's only functions are pursuant to the quality and 
utilization review program. In paragraph (f)(3) of this section, this 
type of contractor is referred to as a ``sole function PRO.'' In other 
cases, the Peer Review Organization contractor is also performing other 
functions in connection with the administration and management of 
CHAMPUS. In paragraph (f)(3) of this section, this type of contractor is 
referred to as a ``multi-function PRO.'' As an example of the latter 
type, managed care contractors may perform a wide range of functions 
regarding management of the delivery and financing of health care 
services under CHAMPUS, including but not limited to functions under the 
Quality and Utilization Review Peer Review Organization program.
    (ii) Special rules and procedures. With respect to multi-function 
PROs, the Director, OCHAMPUS may establish special procedures to assure 
the independence of the Quality and Utilization Review Peer Review 
Organization program and otherwise advance the objectives of the 
program. These special rules and procedures include, but are not limited 
to, the following:
    (A) A reconsidered determination that would be final in cases 
involving sole-function PROs under paragraph (i)(2) of this section will 
not be final in connection with multi-function PROs. Rather, in such 
cases (other than any case which is appealable under paragraph (i)(3) of 
this section), an opportunity for a second reconsideration shall be 
provided. The second reconsideration will be provided by OCHAMPUS or 
another contractor independent of the multi-function PRO that performed 
the review. The second reconsideration may not be further appealed by 
the provider.
    (B) Procedures established by paragraphs (g) through (m) of this 
section shall not apply to any action of a multi-function PRO (or 
employee or other person or entity affiliated with the PRO) carried out 
in performance of functions other than functions under this section.
    (g) Procedures regarding initial determinations. The CHAMPUS PROs 
shall

[[Page 305]]

establish and follow procedures for initial determinations that are 
substantively the same or comparable to the procedures applicable to 
Medicare under 42 CFR 466.83 to 466.104. In addition, these procedures 
shall provide that a PRO's determination that an admission is medically 
necessary is not a guarantee of payment by CHAMPUS; normal CHAMPUS 
benefit and procedural coverage requirements must also be applied.
    (h) Procedures regarding reconsiderations. The CHAMPUS PROs shall 
establish and follow procedures for reconsiderations that are 
substantively the same or comparable to the procedures applicable to 
reconsiderations under Medicare pursuant to 42 CFR 473.15 to 473.34, 
except that the time limit for requesting reconsideration (see 42 CFR 
473.20(a)(1)) shall be 90 days. A PRO reconsidered determination is 
final and binding upon all parties to the reconsideration except to the 
extent of any further appeal pursuant to paragraph (i) of this section.
    (i) Appeals and hearings. (1) Beneficiaries may appeal a PRO 
reconsideration determination of OCHAMPUS and obtain a hearing on such 
appeal to the extent allowed and under the procedures set forth in Sec. 
199.10(d).
    (2) Except as provided in paragraph (i)(3), a PRO reconsidered 
determination may not be further appealed by a provider.
    (3) A provider may appeal a PRO reconsideration determination to 
OCHAMPUS and obtain a hearing on such appeal to the extent allowed under 
the procedures set forth in Sec. 199.10(d) if it is a determination 
pursuant to Sec. 199.4(h) that the provider knew or could reasonably 
have been expected to know that the services were excludable.
    (4) For purposes of the hearing process, a PRO reconsidered 
determination shall be considered as the procedural equivalent of a 
formal review determination under Sec. 199.10, unless revised at the 
initiative of the Director, OCHAMPUS prior to a hearing on the appeal, 
in which case the revised determination shall be considered as the 
procedural equivalent of a formal review determination under Sec. 
199.10.
    (5) The provisions of Sec. 199.10(e) concerning final action shall 
apply to hearings cases.
    (j) Acquisition, protection and disclosure of peer review 
information. The provisions of 42 CFR part 476, except Sec. 476.108, 
shall be applicable to the CHAMPUS PRO program as they are to the 
Medicare PRO program.
    (k) Limited immunity from liability for participants in PRO program. 
The provisions of section 1157 of the Social Security Act (42 U.S.C. 
1320c-6) are applicable to the CHAMPUS PRO program in the same manner as 
they apply to the Medicare PRO program. Section 1102(g) of title 10, 
United States Code also applies to the CHAMPUS PRO program.
    (l) Additional provision regarding confidentiality of records--(1) 
General rule. The provisions of 10 U.S.C. 1102 regarding the 
confidentiality of medical quality assurance records shall apply to the 
activities of the CHAMPUS PRO program as they do to the activities of 
the external civilian PRO program that reviews medical care provided in 
military hospitals.
    (2) Specific applications. (i) Records concerning PRO deliberations 
are generally nondisclosable quality assurance records under 10 U.S.C. 
1102.
    (ii) Initial denial determinations by PROs pursuant to pargraph (g) 
of this section (concerning medical necessity determinations, DRG 
validation actions, etc.) and subsequent decisions regarding those 
determinations are not nondisclosable quality assurance records under 10 
U.S.C. 1102.
    (iii) Information the subject of mandatory PRO disclosure under 42 
CFR part 476 is not a nondisclosable quality assurance record under 10 
U.S.C. 1102.
    (m) Obligations, sanctions and procedures. (1) The provisions of 42 
CFR 1004.1-1004.80 shall apply to the CHAMPUS PRO program as they do the 
Medicare PRO program, except that the functions specified in those 
sections for the Office of Inspector General of the Department of Health 
and Human Services shall be the responsibility of OCHAMPUS.
    (2) The provisions of 42 U.S.C. section 1395ww(f)(2) concerning 
circumvention by any hospital of the applicable payment methods for 
inpatient services shall apply to CHAMPUS payment

[[Page 306]]

methods as they do to Medicare payment methods.
    (3) The Director, or a designee, of CHAMPUS shall determine whether 
to impose a sanction pursuant to paragraphs (m)(1) and (m)(2) of this 
section. Providers may appeal adverse sanctions decisions under the 
procedures set forth in Sec. 199.10(d).
    (n) Authority to integrate CHAMPUS PRO and military medical 
treatment facility utilization review activities. (1) In the case of a 
military medical treatment facility (MTF) that has established 
utilization review requirements similar to those under the CHAMPUS PRO 
program, the contractor carrying out this function may, at the request 
of the MTF, utilize procedures comparable to the CHAMPUS PRO program 
procedures to render determinations or recommendations with respect to 
utilization review requirements.
    (2) In any case in which such a contractor has comparable 
responsibility and authority regarding utilization review in both an MTF 
(or MTFs) and CHAMPUS, determinations as to medical necessity in 
connection with services from an MTF or CHAMPUS-authorized provider may 
be consolidated.
    (3) In any case in which an MTF reserves authority to separate an 
MTF determination on medical necessity from a CHAMPUS PRO program 
determination on medical necessity, the MTF determination is not binding 
on CHAMPUS.

[55 FR 625, Jan. 8, 1990, as amended at 58 FR 58961, Nov. 5, 1993; 60 FR 
52095, Oct. 5, 1995; 63 FR 48447, Sept. 10, 1998; 66 FR 40608, Aug. 3, 
2001; 67 FR 42721, June 25, 2002; 68 FR 23033, Apr. 30, 2003; 68 FR 
32363, May 30, 2003; 68 FR 44881, July 31, 2003; 70 FR 19266, Apr. 13, 
2005]



Sec. 199.16  Supplemental Health Care Program for active duty members.

    (a) Purpose and applicability. (1) The purpose of this section is to 
implement, with respect to health care services provided under the 
supplemental health care program for active duty members of the 
uniformed services, the provision of 10 U.S.C. 1074(c). This section of 
law authorizes DoD to establish for the supplemental care program the 
same payment rules, subject to appropriate modifications, as apply under 
CHAMPUS.
    (2) This section applies to the program, known as the supplemental 
care program, which provides for the payment by the uniformed services 
to private sector health care providers for health care services 
provided to active duty members of the uniformed services. Although not 
part of CHAMPUS, the supplemental care program is similar to CHAMPUS in 
that it is a program for the uniformed services to purchase civilian 
health care services for active duty members. For this reason, the 
Director, OCHAMPUS assists the uniformed services in the administration 
of the supplemental care program.
    (3) This section applies to all health care services covered by the 
CHAMPUS. For purposes of this section, health care services ordered by a 
military treatment facility (MTF) provider for an MTF patient (who is 
not an active duty member) for whom the MTF provider maintains 
responsibility are also covered by the supplemental care program and 
subject to the requirements of this section.
    (b) Obligation of providers concerning payment for supplemental 
health care for active duty members--(1) Hospitals covered by DRG-based 
payment system. For a hospital covered by the CHAMPUS DRG-based payment 
system to maintain its status as an authorized provider for CHAMPUS 
pursuant to Sec. 199.6, that hospital must also be a participating 
provider for purposes of the supplemental care program. As a 
participating provider, each hospital must accept the DRG-based payment 
system amount determined pursuant to Sec. 199.14 as payment in full for 
the hospital services covered by the system. The failure of any hospital 
to comply with this obligation subjects that hospital to exclusion as a 
CHAMPUS-authorized provider.
    (2) Other participating providers. For any institutional or 
individual provider, other than those described in paragraph (b)(1) of 
this section that is a participating provider, the provider must also be 
a participating provider for purposes of the supplemental care program. 
The provider must accept the CHAMPUS allowable amount determined 
pursuant to Sec. 199.14 as payment in full for the hospital services 
covered

[[Page 307]]

by the system. The failure of any provider to comply with this 
obligation subjects the provider to exclusion as a participating 
provider.
    (c) General rule for payment and administration. Subject to the 
special rules and procedures in paragraph (d) of this section and the 
waiver authority in paragraph (e) of this section, as a general rule the 
provisions of Sec. 199.14 shall govern payment and administration of 
claims under the supplemental care program as they do claims under 
CHAMPUS. To the extent necessary to interpret or implement the 
provisions of Sec. 199.14, related provisions of this part shall also 
be applicable.
    (d) Special rules and procedures. As exceptions to the general rule 
in paragraph (c) of this section, the special rules and procedures in 
this section shall govern payment and administration of claims under the 
supplemental care program. These special rules and procedures are 
subject to the TRICARE Prime Remote program for active duty service 
members set forth in paragraph (e) of this section and the waiver 
authority of paragraph (f) of this section.
    (1) There is no patient cost sharing under the supplemental care 
program. All amounts due to be paid to the provider shall be paid by the 
program.
    (2) Preauthorization by the Uniformed Services of each service is 
required for the supplemental care program except for services in cases 
of medical emergency (for which the definition in Sec. 199.2 shall 
apply) or in cases governed by the TRICARE Prime Remote program for 
active duty service members set forth in paragraph (e) of this section. 
It is the responsibility of the active duty members to obtain 
preauthorization for each service. With respect to each emergency 
inpatient admission, after such time as the emergency condition is 
addressed, authorization for any proposed continued stay must be 
obtained within two working days of admission.
    (3) With respect to the filing of claims and similar administrative 
matters for which this part refers to activities of the CHAMPUS fiscal 
intermediaries, for purposes of the supplemental care program, 
responsibilities for claims processing, payment and some other 
administrative matters may be assigned by the Director, OCHAMPUS to the 
same fiscal intermediaries, other contractor, or to the nearest military 
medical treatment facility or medical claims office.
    (4) The annual cost pass-throughs for capital and direct medical 
education costs that are available under the CHAMPUS DRG-based payment 
system are also available, upon request, under the supplemental care 
program. To obtain payment include the number of active duty bed days as 
a separate line item on the annual request to the CHAMPUS fiscal 
intermediaries.
    (5) For providers other than participating providers, the Director, 
OCHAMPUS may authorize payment in excess of CHAMPUS allowable amounts. 
No provider may bill an active duty member any amount in excess of the 
CHAMPUS allowable amount.
    (e) TRICARE Prime Remote for Active Duty Members. (1) General. The 
TRICARE Prime Remote (TPR) program is available for certain active duty 
members of the Uniformed Services assigned to remote locations in the 
United States and the District of Columbia who are entitled to coverage 
of medical care, and the standards for timely access to such care, 
outside a military treatment facility that are comparable to coverage 
for medical care and standards for timely access to such care as exist 
under TRICARE Prime under Sec. 199.17. Those active duty members who 
are eligible under the provisions of 10 U.S.C. 1074(c)(3) and who enroll 
in the TRICARE Prime Remote program, may not be required to receive 
routine primary medical care at a military medical treatment facility.
    (2) Eligibility. To receive health care services under the TRICARE 
Prime Remote program, an individual must be an active duty member of the 
Uniformed Services on orders for more than thirty consecutive days who 
meet the following requirements:
    (i) Has a permanent duty assignment that is greater than fifty miles 
or approximately one hour drive from a military treatment facility or 
military clinic designated as adequate to provide the needed primary 
care services to the active duty service member; and

[[Page 308]]

    (ii) Pursuant to the assignment of such duty, resides at a location 
that is greater than fifty miles or approximately one hour from a 
military medical treatment facility or military clinic designated as 
adequate to provide the needed primary care services to the active duty 
service member.
    (3) Enrollment. An active duty service member eligible for the 
TRICARE Prime Remote program must enroll in the program. If an eligible 
active duty member does not enroll in the TRICARE Prime Remote program, 
the member shall receive health care services provide under the 
supplemental health program subject to all requirements of this section 
without application of the provisions of paragraph (e) of this section.
    (4) Preauthorization. If a TRICARE Prime network under Sec. 199.17 
exists in the remote location, the TRICARE Prime Remote enrolled active 
duty member will select or be assigned a primary care manager. In the 
absence of a TRICARE primary care manager in the remote location and if 
the active duty member is not assigned to a military primary care 
manager based on fitness for duty requirements, the TRICARE Prime Remote 
enrolled active duty member may use a local TRICARE authorized provider 
for primary health care services without preauthorization. Any referral 
for specialty care will require the TRICARE Prime Remote enrolled active 
duty member to obtain preauthorization for such services.
    (f) Waiver authority. With the exception of statutory requirements, 
any restrictions or limitations pursuant to the general rule in 
paragraph (c) of this section, and special rules and procedures in 
paragraph (d) of this section, may be waived by the Director, OCHAMPUS, 
at the request of an authorized official of the uniformed service 
concerned, based on a determination that such waiver is necessary to 
assure adequate availability of health care services to active duty 
members.
    (g) Authorities. (1) The Uniformed Services may establish additional 
procedures, consistent with this part, for the effective administration 
of the supplemental care program in their respective services.
    (2) The Assistant Secretary of Defense for Health Affairs is 
responsible for the overall policy direction of the supplemental care 
program and the administration of this part.
    (3) The Director, OCHAMPUS shall issue procedural requirements for 
the implementation of this section, including requirement for claims 
submission similar to those established by Sec. 199.7.

[56 FR 23801, May 24, 1991, as amended at 58 FR 58963, Nov. 5, 1993; 67 
FR 5479, Feb. 6, 2002]



Sec. 199.17  TRICARE program.

    (a) Establishment. The TRICARE program is established for the 
purpose of implementing a comprehensive managed health care program for 
the delivery and financing of health care services in the Military 
Health System.
    (1) Purpose. The TRICARE program implements management improvements 
primarily through managed care support contracts that include special 
arrangements with civilian sector health care providers and better 
coordination between military medical treatment facilities (MTFs) and 
these civilian providers. Implementation of these management 
improvements includes adoption of special rules and procedures not 
ordinarily followed under CHAMPUS or MTF requirements. This section 
establishes those special rules and procedures.
    (2) Statutory authority. Many of the provisions of this section are 
authorized by statutory authorities other than those which authorize the 
usual operation of the CHAMPUS program, especially 10 U.S.C. 1079 and 
1086. The TRICARE program also relies upon other available statutory 
authorities, including 10 U.S.C. 1099 (health care enrollment system), 
10 U.S.C. 1097 (contracts for medical care for retirees, dependents and 
survivors: alternative delivery of health care), and 10 U.S.C. 1096 
(resource sharing agreements).
    (3) Scope of the program. The TRICARE program is applicable to all 
of the uniformed services. Its geographical applicability is all 50 
states and the District of Columbia, In addition, if authorized by the 
Assistant Secretary of Defense (Health Affairs), the TRICARE program may 
be implemented in areas outside the 50 states and the District of 
Columbia. In such

[[Page 309]]

cases, the Assistant Secretary of Defense (Health Affairs) may also 
authorize modifications to TRICARE program rules and procedures as may 
be appropriate to the area involved.
    (4) MTF rules and procedures affected. Much of this section relates 
to rules and procedures applicable to the delivery and financing of 
health care services provided by civilian providers outside military 
treatment facilities. This section provides that certain rules, 
procedures, rights and obligations set forth elsewhere in this part (and 
usually applicable to CHAMPUS) are different under the TRICARE program. 
In addition, some rules, procedures, rights and obligations relating to 
health care services in military treatment facilities are also different 
under the TRICARE program. In such cases, provisions of this section 
take precedence and are binding.
    (5) Implementation based on local action. The TRICARE program is not 
automatically implemented in all areas where it is potentially 
applicable. Therefore, provisions of this section are not automatically 
implemented, Rather, implementation of the TRICARE program and this 
section requires an official action by an authorized individual, such as 
a military medical treatment facility commander, a Surgeon General, the 
Assistant Secretary of Defense (Health Affairs), or other person 
authorized by the Assistant Secretary. Public notice of the initiation 
of the TRICARE program will be achieved through appropriate 
communication and media methods and by way of an official announcement 
by the Director, OCHAMPUS, identifying the military medical treatment 
facility catchment area or other geographical area covered.
    (6) Major features of the TRICARE program. The major features of the 
TRICARE program, described in this section, include the following:
    (i) Comprehensive enrollment system. Under the TRICARE program, all 
health care beneficiaries become classified into one of four categories:
    (A) Active duty members, all of whom are automatically enrolled in 
TRICARE Prime;
    (B) TRICARE Prime enrollees;
    (C) TRICARE Standard participants, who are all CHAMPUS eligible 
beneficiaries who are not enrolled in TRICARE Prime;
    (D) Non-CHAMPUS beneficiaries, who are beneficiaries eligible for 
health care services in military treatment facilities, but not eligible 
for CHAMPUS;
    (ii) Establishment of a triple option benefit. A second major 
feature of TRICARE is the establishment of three options for receiving 
health care:
    (A) ``TRICARE Prime,'' which is a health maintenance organization 
(HMO)-like program. It generally features use of military treatment 
facilities and substantially reduced out-of-pocket costs for CHAMPUS 
care. Beneficiaries generally agree to use military treatment facilities 
and designated civilian provider networks and to follow certain managed 
care rules and procedures.
    (B) ``TRICARE Extra,'' which is a preferred provider organization 
(PPO) program. It allows TRICARE Standard beneficiaries to use the 
TRICARE provider network, including both military facilities and the 
civilian network, with reduced out-of-pocket costs. These beneficiaries 
also continue to be eligible for military medical treatment facility 
care on a space-available basis.
    (C) ``TRICARE Standard'' which is the basic CHAMPUS program. All 
eligible beneficiaries are automatically included in Standard unless 
they have enrolled in Prime. It preserves broad freedom of choice of 
civilian providers, but does not offer reduced out-of-pocket costs. 
These beneficiaries continue to be eligible to receive care in military 
medical treatment facilities on a space available basis.
    (iii) Coordination between military and civilian health care 
delivery systems. A third major feature of the TRICARE program is a 
series of activities affecting all beneficiary enrollment categories, 
designed to coordinate care between military and civilian health care 
systems. These activities include:
    (A) Resource sharing agreements, under which a TRICARE contractor 
provides to a military medical treatment facility, personnel and other 
resources to increase the availability of services in the facility. All 
beneficiary

[[Page 310]]

enrollment categories may benefit from this increase.
    (B) Health care finder, an administrative activity that facilitates 
referrals to appropriate health care services in the military facility 
and civilian provider network. All beneficiary enrollment categories may 
use the health care finder.
    (C) Integrated quality and utilization management services, 
potentially standardizing reviews for military and civilian sector 
providers. All beneficiary categories may benefit from these services.
    (iv) Consolidated schedule of charges. A fourth major feature of 
TRICARE is a consolidated schedule of charges, incorporating revisions 
that reduce differences in charges between military and civilian 
services. In general, the TRICARE program reduces out-of-pocket costs 
for civilian sector care.
    (7) Preemption of State laws. (i) Pursuant to 10 U.S.C. 1103 and 
section 8025 (fourth proviso) of the Department of Defense 
Appropriations Act, 1994, the Department of Defense has determined that 
in the administration of 10 U.S.C. chapter 55, preemption of State and 
local laws relating to health insurance, prepaid health plans, or other 
health care delivery or financing methods is necessary to achieve 
important Federal interests, including but not limited to the assurance 
of uniform national health programs for military families and the 
operation of such programs at the lowest possible cost to the Department 
of Defense, that have a direct and substantial effect on the conduct of 
military affairs and national security policy of the United States.
    (ii) Based on the determination set forth in paragraph (a)(7)(i) of 
this section, any State or local law relating to health insurance, 
prepaid health plans, or other health care delivery or financing methods 
is preempted and does not apply in connection with TRICARE regional 
contracts. Any such law, or regulation pursuant to such law, is without 
any force or effect, and State or local governments have no legal 
authority to enforce them in relation to the TRICARE regional contracts. 
(However, the Department of Defense may by contract establish legal 
obligations of the part of TRICARE contractors to conform with 
requirements similar or identical to requirements of State or local laws 
or regulations).
    (iii) The preemption of State and local laws set forth in paragraph 
(a)(7)(ii) of this section includes State and local laws imposing 
premium taxes on health or dental insurance carriers or underwriters or 
other plan managers, or similar taxes on such entities. Such laws are 
laws relating to health insurance, prepaid health plans, or other health 
care delivery or financing methods, within the meaning of the statutes 
identified in paragraph (a)(7)(i) of this section. Preemption, however, 
does not apply to taxes, fees, or other payments on net income or profit 
realized by such entities in the conduct of business relating to DoD 
health services contracts, if those taxes, fees or other payments are 
applicable to a broad range of business activity. For purposes of 
assessing the effect of Federal preemption of State and local taxes and 
fees in connection with DoD health and dental services contracts, 
interpretations shall be consistent with those applicable to the Federal 
Employees Health Benefits Program under 5 U.S.C. 8909(f).
    (b) Triple option benefit in general. Where the TRICARE program is 
fully implemented, eligible beneficiaries are given the option of 
enrolling in TRICARE Prime (also referred to as ``Prime'') or remaining 
in TRICARE Standard (also referred to as ``Standard''). In the absence 
of an enrollment in Prime, coverage under Standard is automatic.
    (1) Choice voluntary. With the exception of active duty members, the 
choice of whether to enroll in Prime is voluntary for all eligible 
beneficiaries. For dependents who are minors, the choice will be 
exercised by a parent or guardian.
    (2) Active duty members. For active duty members located in areas 
where the TRICARE program is implemented, enrollment in Prime is 
mandatory.
    (3) Automatic enrollment of certain dependents: Under 10 U.S.C. 
1097a, in the case of dependents of active duty members in the grade of 
E-1 to E-4, such dependents who reside in a catchment area of a military 
treatment facility

[[Page 311]]

shall be enrolled in TRICARE Prime consistent with procedures 
established under paragraph (o)(7) of this section. The enrollment of a 
dependent of the member may be terminated by the member, dependent or 
other responsible individual at any time.
    (c) Eligibility for enrollment. Where the TRICARE program is fully 
implemented, all CHAMPUS-eligible beneficiaries who are not Medicare 
eligible on the basis of age are eligible to enroll in Prime or to 
remain covered under Standard. CHAMPUS beneficiaries who are eligible 
for Medicare on basis of age (and are enrolled in Medicare Part B) are 
automatically covered under TRICARE Standard. Further, some rules and 
procedures are different for dependents of active duty members and 
retirees, dependents, and survivors. In addition, where the TRICARE 
program is implemented, a military medical treatment facility commander 
or other authorized individual may establish priorities, consistent with 
paragraph (c) of this section, based on availability or other 
operational requirements, for when and whether to offer enrollment in 
Prime.
    (1) Active duty members. Active duty members are required to enroll 
in Prime when it is offered. Active duty members shall have first 
priority for enrollment in Prime. Because active duty members are not 
CHAMPUS eligible, when active duty members obtain care from civilian 
providers outside the military medical treatment facility, the 
supplemental care program and its requirements (including Sec. 199.16) 
will apply.
    (2) Dependents of active duty members.
    (i) Dependents of active duty members are eligible to enroll in 
Prime. After all active duty members are enrolled, those dependents of 
active duty members in the grade of E-1 to E-4 will have second priority 
and all other dependents of active duty members will have third 
priority.
    (ii) If all dependents of active duty members within the area 
concerned cannot be accepted for enrollment in Prime at the same time, 
the MTF Commander (or other authorized individual) may establish 
priorities within this beneficiary group category. The priorities may be 
based on first-come, first-served, or alternatively, be based on rank of 
sponsor, beginning with the lowest pay grade.
    (3) Retired members, dependents of retired members, and survivors. 
(i) Where TRICARE is fully implemented, all CHAMPUS-eligible retired 
members, dependents of retired members, and survivors who are not 
eligible for Medicare on the basis of age are eligible to enroll in 
Prime. After all active duty members are enrolled and availability of 
enrollment is assured for all active duty dependents wishing to enroll, 
this category of beneficiaries will have third priority for enrollment.
    (ii) If all eligible retired members, dependents of retired members, 
and survivors within the area concerned cannot be accepted for 
enrollment in Prime at the same time, the MTF Commander (or other 
authorized individual) may allow enrollment within this beneficiary 
group category on a first come, first served basis.
    (4) Coverage under Standard. All CHAMPUS-eligible beneficiaries who 
do not enroll in Prime will remain in Standard.
    (d) Health benefits under Prime. Health benefits under Prime, set 
forth in paragraph (d) of this section, differ from those under Extra 
and Standard, set forth in paragraphs (e) and (f) of this section.
    (1) Military treatment facility (MTF) care--(i) In general. All 
participants in Prime are eligible to receive care in military treatment 
facilities. Participants in Prime will be given priority for such care 
over other beneficiaries. Among the following beneficiary groups, access 
priority for care in military treatment facilities where TRICARE is 
implemented as follows:
    (A) Active duty service members;
    (B) Active duty service members' dependents and survivors of service 
members who died on active duty, who are enrolled in TRICARE Prime;
    (C) Retirees, their dependents and survivors, who are enrolled in 
TRICARE Prime;
    (D) Active duty service members' dependents and survivors of service 
members who died on active duty, who are not enrolled in TRICARE Prime; 
and
    (E) Retirees, their dependents and survivors who are not enrolled in

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TRICARE Prime. For purposes of this paragraph (d)(1), survivors of 
members who died while on active duty are considered as among dependents 
of active duty service members.
    (ii) Special provisions. Enrollment in Prime does not affect access 
priority for care in military treatment facilities for several 
miscellaneous beneficiary groups and special circumstances. Those 
include Secretarial designees, NATO and other foreign military personnel 
and dependents authorized care through international agreements, 
civilian employees under workers' compensation programs or under safety 
programs, members on the Temporary Disability Retired List (for 
statutorily required periodic medical examinations), members of the 
reserve components not on active duty (for covered medical services), 
military prisoners, active duty dependents unable to enroll in Prime and 
temporarily away from place of residence, and others as designated by 
the Assistant Secretary of Defense (Health Affairs). Additional 
exceptions to the normal Prime enrollment access priority rules may be 
granted for other categories of individuals, eligible for treatment in 
the MTF, whose access to care is necessary to provide an adequate 
clinical case mix to support graduate medical education programs or 
readiness-related medical skills sustainment activities, to the extent 
approved by the ASD(HA).
    (2) Non-MTF care for active duty members. Under Prime, non-MTF care 
needed by active duty members continues to be arranged under the 
supplemental care program and subject to the rules and procedures of 
that program, including those set forth in Sec. 199.16.
    (3) Benefits covered for CHAMPUS eligible beneficiaries for civilian 
sector care. The provisions of Sec. 199.18 regarding the Uniform HMO 
Benefit apply to TRICARE Prime enrollees.
    (e) Health benefits under the TRICARE extra plan. Beneficiaries not 
enrolled in Prime, although not in general required to use the Prime 
civilian preferred provider network, are eligible to use the network on 
a case-by-case basis under Extra. The health benefits under Extra are 
identical to those under Standard, set forth in paragraph (f) of this 
section, except that the CHAMPUS cost sharing percentages are lower than 
usual CHAMPUS cost sharing. The lower requirements are set forth in the 
consolidated schedule of charges in paragraph (m) of this section.
    (f) Health benefits under the TRICARE standard plan. Where the 
TRICARE program is implemented, health benefits under Prime, set forth 
under paragraph (d) of this section, and Extra, set forth under 
paragraph (e) of this section, are different than health benefits under 
Standard, set forth in this paragraph (f).
    (1) Military treatment facility (MTF) care. All nonenrollees 
(including beneficiaries not eligible to enroll) continue to be eligible 
to receive care in military treatment facilities on a space available 
basis.
    (2) Freedom of choice of civilian provider. Except as stated in 
Sec. 199.4(a) in connection with nonavailability statement 
requirements, CHAMPUS-eligible participants in Standard maintain their 
freedom of choice of civilian provider under CHAMPUS. All 
nonavailability statement requirements of Sec. 199.4(a) apply to 
Standard participants.
    (3) CHAMPUS benefits apply. The benefits, rules and procedures of 
the CHAMPUS basis program as set forth in this part, shall apply to 
CHAMPUS-eligible participants in Standard.
    (4) Preferred provider network option for standard participants. 
Standard participants, although not generally required to use the 
TRICARE program preferred provider network are eligible to use the 
network on a case-by-case basis, under Extra.
    (g) TRICARE Prime Remote for Active Duty Family Members. (1) In 
general. In geographic areas in which TRICARE Prime is not offered and 
in which eligible family members reside, there is offered under 10 
U.S.C. 1079(p) TRICARE Prime Remote for Active Duty Family Members as an 
enrollment option. TRICARE Prime Remote for Active Duty Family Members 
(TPRADFM) will generally follow the rules and procedures of TRICARE 
Prime, except as provided in this paragraph (g) and otherwise except to 
the extent the Director, TRICARE Management Activity

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determines them to be infeasible because of the remote area.
    (2) Active duty family member. For purposes of this paragraph (g), 
the term ``active duty family member'' means one of the following 
dependents of an active duty member of the Uniformed Services: spouse, 
child, or unmarried child placed in the legal custody of the active duty 
member as a result of an order of a court of competent jurisdiction for 
a period of at least 12 consecutive months.
    (3) Eligibility. (i) An active duty family member is eligible for 
TRICARE Prime Remote for Active Duty Family Members if he or she is 
eligible for CHAMPUS and, on or after December 2, 2003 meets the 
criteria of either (g)(3)(i)(A) and (B), or (g)(3)(i)(C):
    (A) The family member's active duty sponsor has been assigned 
permanent duty as a recruiter; as an instructor at an educational 
institution, an administrator of a program, or to provide administrative 
services in support of a program of instruction for the Reserve 
Officers' Training Corps; as a full-time adviser to a unit of a reserve 
component; or any other permanent duty designated by the Director, 
TRICARE Management Activity that the Director determines is more than 50 
miles, or approximately one hour driving time, from the nearest military 
treatment facility that is adequate to provide care.
    (B) The family members and active duty sponsor, pursuant to the 
assignment of duty described in paragraph (g)(3)(i)(A) of this section, 
reside at a location designed by the Director, TRICARE Management 
Activity, that the Director determines is more than 50 miles, or 
approximately one hour driving time, from the nearest military medical 
treatment facility that is adequate to provide care.
    (C) The family member, having resided together with the active duty 
sponsor while the sponsor served in an assignment described in 
(g)(3)(i)(A), continues to reside at the same location after the sponsor 
relocates without the family member pursuant to orders for a permanent 
change of duty station, and the orders do not authorize dependents to 
accompany the sponsor to the new duty station at the expense of the 
United States.
    (ii) A family member who is a dependent of a reserve component 
member is eligible for TRICARE Prime Remote for Active Duty Family 
members if he or she is eligible for CHAMPUS and meets all of the 
following additional criteria:
    (A) The reserve component member has been ordered to active duty for 
a period of more than 30 days.
    (B) The family member resides with the member.
    (C) The Director, TRICARE Management Activity, determines the 
residence of the reserve component member is more than 50 miles, or 
approximately one hour driving time, from the nearest military medical 
treatment facility that is adequate to provide care.
    (D) ``Resides with'' is defined as the TRICARE Prime Remote 
residence address at which the family resides with the activated 
reservist upon activation.
    (4) Enrollment. TRICARE Prime Remote for Active Duty Family Members 
requires enrollment under procedures set forth in paragraph (o) of this 
section or as otherwise established by the Executive Director, TRICARE 
Management Activity.
    (5) Health care management requirements under TRICARE Prime Remote 
for Active Duty Family Members. The additional health care management 
requirements applicable to Prime enrollees under paragraph (n) of this 
section are applicable under TRICARE Prime Remote for Active Duty Family 
Members unless the Executive Director, TRICARE Management Activity 
determines they are infeasible because of the particular remote 
location. Enrollees will be given notice of the applicable management 
requirements in their remote location.
    (6) Cost sharing. Beneficiary cost sharing requirements under 
TRICARE Prime Remote for Active Duty Family Members are the same as 
those under TRICARE Prime under paragraph (m) of this section, except 
that the higher point-of-service option cost sharing and deductible 
shall not apply to routine primary health care services in cases in 
which, because of the remote

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location, the beneficiary is not assigned a primary care manager or the 
Executive Director, TRICARE Management Activity determines that care 
from a TRICARE network provider is not available within the TRICARE 
access standards under paragraph (p)(5) of this section. The higher 
point-of-service option cost sharing and deductible shall apply to 
specialty health care services received by any TRICARE Prime Remote for 
Active Duty Family Members enrollee unless an appropriate referral/
preauthorization is obtained as required by section (n) under TRICARE 
Prime. In the case of pharmacy services under Sec. 199.21, where the 
Director, TRICARE Management Activity determines that no TRICARE network 
retail pharmacy has been established within a reasonable distance of the 
residence of the TRICARE Prime Remote for Active Duty Family Members 
enrollee, cost sharing applicable to TRICARE network retail pharmacies 
will be applicable to all CHAMPUS eligible pharmacies in the remote 
area.
    (h) Resource sharing agreements. Under the TRICARE program, any 
military medical treatment facility (MTF) commander may establish 
resource sharing agreements with the applicable managed care support 
contractor for the purpose of providing for the sharing of resources 
between the two parties. Internal resource sharing and external resource 
sharing agreements are authorized. The provisions of this paragraph (h) 
shall apply to resource sharing agreements under the TRICARE program.
    (1) In connection with internal resource sharing agreements, 
beneficiary cost sharing requirements shall be the same as those 
applicable to health care services provided in facilities of the 
uniformed services.
    (2) Under internal resource sharing agreements, the double coverage 
requirements of Sec. 199.8 shall be replaced by the Third Party 
Collection procedures of 32 CFR part 220, to the extent permissible 
under such part. In such a case, payments made to a resource sharing 
agreement provider through the TRICARE managed care support contractor 
shall be deemed to be payments by the MTF concerned.
    (3) Under internal or external resource sharing agreements, the 
commander of the MTF concerned may authorize the provision of services, 
pursuant to the agreement, to Medicare-eligible beneficiaries, if such 
services are not reimbursable by Medicare, and if the commander 
determines that this will promote the most cost-effective provision of 
services under the TRICARE program.
    (i) Health care finder. The Health Care Finder is an administrative 
activity that assists beneficiaries in being referred to appropriate 
health care providers, especially the MTF and preferred providers. 
Health Care Finder services are available to all beneficiaries. In the 
case of TRICARE Prime enrollees, the Health Care Finder will facilitate 
referrals in accordance with Prime rules and procedures. For Standard 
participants, the Finder will provide assistance for use of Extra. For 
Medicare-eligible beneficiaries, the Finder will facilitate referrals to 
TRICARE network providers, generally required to be Medicare 
participating providers. For participants in other managed care 
programs, the Finder will assist in referrals pursuant to the 
arrangements made with the other managed care program. For all 
beneficiary enrollment categories, the finder will assist in obtaining 
access to available services in the medical treatment facility.
    (j) General quality assurance, utilization review, and 
preauthorization requirements under TRICARE program. All quality 
assurance, utilization review, and preauthorization requirements for the 
basic CHAMPUS program, as set forth in this part 199 (see especially 
applicable provisions of Sec. Sec. 199.4 and 199.15), are applicable to 
Prime, Extra and Standard under the TRICARE program. Under all three 
options, some methods and procedures for implementing and enforcing 
these requirements may differ from the methods and procedures followed 
under the basic CHAMPUS program in areas in which the TRICARE program 
has not been implemented. Pursuant to an agreement between a military 
medical treatment facility and TRICARE managed care support contractor, 
quality assurance, utilization review, and

[[Page 315]]

preauthorization requirements and procedures applicable to health care 
services outside the military medical treatment facility may be made 
applicable, in whole or in part, to health care services inside the 
military medical treatment facility.
    (k) Pharmacy services. Pharmacy services under Prime are as provided 
in the Pharmacy benefits Program (see Sec. 199.21).
    (l) PRIMUS and NAVCARE clinics--(1) Description and authority. 
PRIMUS and NAVCARE clinics are contractor owned, staffed, and operated 
clinics that exclusively serve uniformed services beneficiaries. They 
are authorized as transitional entities during the phase-in of TRICARE. 
This authority to operate a PRIMUS or NAVCARE clinic will cease upon 
implementation of TRICARE in the clinic's location, or on October 1, 
1997, whichever is later.
    (2) Eligible beneficiaries. All TRICARE beneficiary categories are 
eligible for care in PRIMUS and NAVCARE Clinics. This includes active 
duty members, Medicare-eligible beneficiaries and other MHSS-eligible 
persons not eligible for CHAMPUS.
    (3) Services and charges. For care provided PRIMUS and NAVCARE 
Clinics, CHAMPUS rules regarding program benefits, deductibles and cost 
sharing requirements do not apply. Services offered and charges will be 
based on those applicable to care provided in military medical treatment 
facilities.
    (4) Priority access. Access to care in PRIMUS and NAVCARE Clinics 
shall be based on the same order of priority as is established for 
military treatment facilities care under paragraph (d)(1) of this 
section.
    (m) Consolidated schedule of beneficiary charges. The following 
consolidated schedule of beneficiary charges is applicable to health 
care services provided under TRICARE for Prime enrollees, Standard 
enrollees and Medicare-eligible beneficiaries. (There are no charges to 
active duty members. Charges for participants in other managed health 
care programs affiliated with TRICARE will be specified in the 
applicable affiliation agreements.)
    (1) Cost sharing for services from TRICARE network providers. (i) 
For Prime enrollees, cost sharing is as specified in the Uniform HMO 
Benefit in Sec. 199.18, except that for care not authorized by the 
primary care manager or Health Care Finder, rules applicable to the 
TRICARE point of service option (see paragraph (n)(3) of this section) 
are applicable. For such unauthorized care, the deductible is $300 per 
person and $600 per family. The beneficiary cost share is 50 percent of 
the allowable charges for inpatient and outpatient care, after the 
deductible.
    (ii) For Standard participants, TRICARE Extra cost sharing applies. 
The deductible is the same as standard CHAMPUS. Cost shares are as 
follows:
    (A) For outpatient professional services, cost sharing will be 
reduced from 20 percent to 15 percent for dependents of active duty 
members.
    (B) For most services for retired members, dependents of retired 
members, and survivors, cost sharing is reduced from 25 percent to 20 
percent.
    (C) In fiscal year 1996, the per diem inpatient hospital copayment 
for retirees, dependents of retirees, and survivors when they use a 
preferred provider network hospital is $250 per day, or 25 percent of 
total charges, whichever is less. There is a nominal copayment for 
active duty dependents, which is the same as under the CHAMPUS program 
(see Sec. 199.4). The per diem amount may be updated for subsequent 
years based on changes in the standard CHAMPUS per diem.
    (iii) For Medicare-eligible beneficiaries, cost sharing will 
generally be as applicable to Medicare participating providers.
    (2) Cost sharing for non-network providers. (i) For TRICARE Prime 
enrollees, rules applicable to the TRICARE point of service option (see 
paragraph (n)(3) of this section) are applicable. The deductible is $300 
per person and $600 per family. The beneficiary cost share is 50 percent 
of the allowable charges, after the deductible.
    (ii) For Standard participants, cost sharing is as specified for the 
basic CHAMPUS program.
    (3) Cost sharing under internal resource sharing agreements. (i) For 
Prime enrollees, cost sharing is as provided in military treatment 
facilities.

[[Page 316]]

    (ii) For Standard participants, cost sharing is as provided in 
military treatment facilities.
    (iii) For Medicare eligible beneficiaries, where made applicable by 
the commander of the military medical treatment facility concerned, cost 
sharing will be as provided in military treatment facilities.
    (4) Cost sharing under external resource sharing. (i) For Prime 
enrollees, cost sharing applicable to services provided by military 
facility personnel shall be as applicable to services in military 
treatment facilities; that applicable to institutional and related 
ancillary charges shall be as applicable to services provided under 
TRICARE Prime.
    (ii) For TRICARE Standard participants, cost sharing applicable to 
services provided by military facility personnel shall be as applicable 
to services in military treatment facilities; that applicable to non-
military providers, including institutional and related ancillary 
charges, shall be as applicable to services provided under TRICARE 
Extra.
    (5) Prescription drugs. Cost sharing for prescription drugs is as 
provided under the Pharmacy Benefits Program in Sec. 199.21.
    (6) Cost share for outpatient services in military treatment 
facilities. (i) For dependents of active duty members in all enrollment 
categories, there is no charge for outpatient visits provided in 
military medical treatment facilities.
    (ii) For retirees, their dependents, and survivors in all enrollment 
categories, there is no charge for outpatient visits provided in 
military medical treatment facilities.
    (7) Cost sharing for additional beneficiaries under the TRICARE 
Prime Remote Program. (i) Active duty family members, defined as the 
lawful husband or wife of a member, and children, as defined in Sec. 
199.3(b)(2)(ii)(A) through (b)(2)(ii)(F) and (b)(2)(ii)(H)(1), 
(b)(2)(ii)(H)(2), and (b)(2)(ii)(H)(4), residing with their Active Duty 
Service Member Sponsor who is TRICARE Prime Remote eligible will have 
cost-shares, co-payments, and deductibles waived for services provided 
on or after October 30, 2000. Pharmacy Benefits Program cost-shares 
established under Sec. 199.21 apply to services provided on or after 
April 1, 2001. Active Duty Service Member Sponsors who are TRICARE Prime 
Remote eligible are those who receive a remote permanent duty 
assignment, and pursuant to the assignment, reside at a location that is 
more than 50 miles, or approximately one hour of driving time from the 
nearest military medical treatment facility adequate to provide the 
needed care. Remote permanent duty assignments include permanent duty as 
a recruiter; permanent duty at an educational institution to instruct, 
administer a program of instruction, or provide administrative services 
in support of a program of instruction for the Reserves Officers' 
Training Corps; permanent duty as a full-time adviser to a unit of a 
reserve component; or any other permanent duty designated by the 
Secretary. This waiver applies to TRICARE covered benefits only. Claims 
processed with a date of service beginning on or after October 30, 2000 
will waive the cost-share, copayment, and deductible. Active Duty Family 
Members residing with TPR eligible Active Duty Service Member (ADSM) 
have copayments, cost-shares, and deductibles for CHAMPUS covered 
benefits except pharmacy benefits waived until the implementation of 
TRICARE Prime Remote for Family Members or October 30, 2001, whichever 
is later. The claims processor will pay the waived portion of the claim 
to the eligible family member or to the provider, as appropriate.
    (ii) Eligible family members will be able to access their provider 
without preauthorization. To obtain the waiver of charges, eligible 
family members are required to use network providers, where available 
and within the TRICARE access standards. Failure to do so will result in 
claims being processed under TRICARE Standard rules. For beneficiaries 
who are enrolled in TRICARE Prime, existing specialty care 
preauthorization requirements and Point of Service rules remain in 
effect.
    (iii) To the greatest extent possible, contractors will assist 
eligible members in finding a TRICARE network, participating, or 
authorized provider. If a network provider cannot be identified within 
the access standards established

[[Page 317]]

under TRICARE, the eligible family member shall use an authorized 
provider to be eligible for the waiver.
    (n) Additional health care management requirements under TRICARE 
prime. Prime has additional, special health care management requirements 
not applicable under Extra, Standard or the CHAMPUS basic program. Such 
requirements must be approved by the Assistant Secretary of Defense 
(Health Affairs). In TRICARE, all care may be subject to review for 
medical necessity and appropriateness of level of care, regardless of 
whether the care is provided in a military medical treatment facility or 
in a civilian setting. Adverse determinations regarding care in military 
facilities will be appealable in accordance with established military 
medical department procedures, and adverse determinations regarding 
civilian care will be appealable in accordance with Sec. 199.15.
    (1) Primary care manager. (i) All active duty members and Prime 
enrollees will be assigned or allowed to select a primary care manager 
pursuant to a system established by the MTF Commander or other 
authorized official, and consistent with the access standards in 
paragraph (p)(5)(i) of this section. The primary care manager may be an 
individual, physician, a group practice, a clinic, a treatment site, or 
other designation. The primary care manager may be part of the MTF or 
the Prime civilian provider network. The enrollee will be given the 
opportunity to register a preference for primary care manager from a 
list of choices provided by the MTF Commander. This preference will be 
entered on a TRICARE Prime enrollment form or similar document. 
Preference requests will be honored subject to availability, under the 
MTF beneficiary category priority system and other operational 
requirements established by the commander and other authorized person. 
MTF PCM nonavailability may be a condition of assignment to a civilian 
provider network PCM.
    (ii) Prime enrollees who are dependents of active duty members in 
pay grades E-1 through E-4 shall have priority over other active duty 
dependents for enrollment with MTF PCMs, subject to MTF capacity.
    (2) Restrictions on the use of providers. The requirements of this 
paragraph (n)(2) shall be applicable to health care utilization under 
TRICARE Prime, except in cases of emergency care and under the point-of-
service option (see paragraph (n)(3) of this section).
    (i) Prime enrollees must obtain all primary health care from the 
primary care manager or from another provider to which the enrollee is 
referred by the primary care manager or an authorized Health Care 
Finder.
    (ii) For any necessary specialty care and nonemergent inpatient 
care, the primary care manager or the Health Care Finder will assist in 
making an appropriate referral.
    (A) For healthcare services provided under managed care support 
contracts entered into by the Department of Defense before October 30, 
2000, all such nonemergency specialty care and inpatient care must be 
preauthorized by the primary care manager or the Health Care Finder.
    (B) For healthcare services provided under TRICARE contracts entered 
into by the Department of Defense on or after October 30, 2000, referral 
requests (consultation requests) for specialty care consultation 
appointment services for TRICARE Prime beneficiaries must be submitted 
by primary care managers. Such referrals will be authorized by Health 
Care Finders (authorization numbers will be assigned so as to facilitate 
claims processing) but medical necessity preauthorization will not be 
required for referral consultation appointment services within the 
TRICARE contractor's network. Some health care services subsequent to 
consultation appointments (invasive procedures, nonemergent admissions 
and other health care services as determined by the Director, TRICARE 
Management Activity, or a designee) will require medical necessity 
preauthorization. Though referrals for specialty care are generally the 
responsibility of the primary care managers, subject to discretion 
exercised by the TRICARE Regional Directors, and established in regional 
policy or memoranda of understanding, specialist providers may be 
permitted to refer patients for additional specialty consultation 
appointment services within

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the TRICARE contractor's network without prior authorization by primary 
care managers or subject to medical necessity preauthorization.
    (iii) The following procedures will apply to health care referrals 
and preauthorizations in catchment areas under TRICARE Prime:
    (A) The first priority for referral for specialty care or inpatient 
care will be to the local MTF (or to any other MTF in which catchment 
area the enrollee resides).
    (B) If the local MTF(s) are unavailable for the services needed, but 
there is another MTF at which the needed services can be provided, the 
enrollee may be required to obtain the services at that MTF. However, 
this requirement will only apply to the extent that the enrollee was 
informed at the time of (or prior to) enrollment that mandatory 
referrals might be made to the MTF involved for the service involved.
    (C) If the needed services are available within civilian preferred 
provider network serving the area, the enrollee may be required to 
obtain the services from a provider within the network. Subject to 
availability, the enrollee will have the freedom to choose a provider 
from among those in the network.
    (D) If the needed services are not available within the civilian 
preferred provider network serving the area, the enrollee may be 
required to obtain the services from a designated civilian provider 
outside the area. However, this requirement will only apply to the 
extent that the enrollee was informed at the time of (or prior to) 
enrollment that mandatory referrals might be made to the provider 
involved for the service involved (with the provider and service either 
identified specifically or in connection with some appropriate 
classification).
    (E) In cases in which the needed health care services cannot be 
provided pursuant to the procedures identified in paragraphs (n)(2)(iii) 
(A) through (D) of this section, the enrollee will receive authorization 
to obtain services from a CHAMPUS-authorized civilian provider(s) of the 
enrollee's choice not affiliated with the civilian preferred provider 
network.
    (iv) When Prime is operating in noncatchment areas, the requirements 
in paragraphs (n)(2)(iii) (B) through (E) of this section shall apply.
    (v) Any health care services obtained by a Prime enrollee, but not 
obtained in accordance with the utilization management rules and 
procedures of Prime will not be paid for under Prime rules, but may be 
covered by the point-of-service option (see paragraph (n)(3) of this 
section). However, Prime rules may cover such services if the enrollee 
did not know and could not reasonably have been expected to know that 
the services were not obtained in accordance with the utilization 
management rules and procedures of Prime.
    (vi) In accordance with guidelines issued by the Assistant Secretary 
of Defense for Health Affairs, certain travel expenses may be reimbursed 
when a TRICARE Prime enrollee is referred by the primary care manager 
for medically necessary specialty care more than 100 miles away from the 
primary care manager's office received on or after October 30, 2000. 
Such guidelines shall be consistent with appropriate provisions of 
generally applicable Department of Defense rules and procedures 
governing travel expenses.
    (3) Point-of-service option. TRICARE Prime enrollees retain the 
freedom to obtain services from civilian providers on a point-of-service 
basis. In such cases, all requirements applicable to standard CHAMPUS 
shall apply, except that there shall be higher deductible and cost 
sharing requirements (as set forth in paragraphs (m)(1)(i) and (m)(2)(i) 
of this section).
    (o) TRICARE program enrollment procedures. There are certain 
requirements pertaining to procedures for enrollment in Prime and 
TRICARE Prime Remote for Active Duty Family Members. (These procedures 
do not apply to active duty members, whose enrollment is mandatory).
    (1) Open enrollment. Beneficiaries will be offered the opportunity 
to enroll in Prime on a continuing basis.
    (2) Enrollment period. The following provisions apply to enrollment 
periods on or after March 10, 2003.
    (i) Beneficiaries who select the TRICARE Prime option or the TRICARE 
Prime Remote for Active

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Duty Family Members option remain enrolled for 12 months increments 
until: they take action to disenroll; they are no longer eligible for 
enrollment in TRICARE Prime or TRICARE Prime Remote for Active Duty 
Family Members; or they are disenrolled for failure to pay required 
enrollment fees if applicable. For those who remain eligible for TRICARE 
Prime enrollment, no later than 15 days before the expiration date of an 
enrollment, the sponsor will be sent a written notification of the 
pending expiration and renewal of the TRICARE Prime enrollment. TRICARE 
Prime enrollments shall be automatically renewed upon the expiration of 
the enrollment unless the renewal is declined by the sponsor. 
Termination of enrollment for failure to pay enrollment fees is 
addressed in paragraph (o)(3) of this section.
    (ii) Exceptions to the 12-month enrollment period.
    (A) Beneficiaries who are eligible to enroll in TRICARE Prime but 
have less than one year of TRICARE eligibility remaining.
    (B) The dependents of a reservist who is called or ordered to active 
duty or of a member of the National Guard who is called or ordered to 
full-time federal National Guard duty for a period of more than 30 days.
    (3) Installment payments of enrollment fee. The enrollment fee 
required by Sec. 199.18(c) may be paid in monthly or quarterly 
installments. Monthly fees may be payable by an allotment from retired 
or retainer pay, or paid from a financial institution through an 
electronic transfer of funds. For beneficiaries paying enrollment fees 
on an installment basis, failure to make a required installment payment 
on a timely basis [including a grace period, as determined by the 
Assistant Secretary of Defense (Health Affairs)] will result in 
termination of the beneficiary's enrollment in Prime and 
disqualification from future enrollment in Prime for a period of one 
year.
    (4) Voluntary disenrollment. Any non-active duty beneficiary may 
disenroll at any time. Disenrollment will take effect in accordance with 
administrative procedures established by the Assistant Secretary of 
Defense (Health Affairs). Beneficiaries who disenroll prior to their 
annual enrollment renewal date will not be eligible to reenroll in Prime 
for a one-year period from the effective date of the disenrollment. This 
one-year exclusion may be waived by the Assistant Secretary of Defense 
(Health Affairs) based on extraordinary circumstances. This one-year 
period does not apply to any dependent whose sponsor is in the grade of 
E-1 to E-4.
    (5) Period revision. Periodically, certain features, rules or 
procedures of Prime, Extra and/or Standard may be revised. If such 
revisions will have a significant effect on participants' costs or 
access to care, beneficiaries will be given the opportunity to change 
their enrollment status coincident with the revisions.
    (6) Effects of failure to enroll. Beneficiaries offered the 
opportunity to enroll in Prime, who do not enroll, will remain in 
Standard and will be eligible to participate in Extra on a case-by-case 
basis.
    (7) Special procedures for certain dependents of active duty members 
in pay grades E-1 to E-4. As an exception to other procedures in 
paragraph (o) of this section, dependents of active duty members in pay 
grades E-1 to E-4, if such dependents reside in a catchment area of a 
military hospital, are automatically enrolled in TRICARE Prime. The 
applicable military hospital shall provide written notice of the 
automatic enrollment to the member and the affected dependents. The 
effective date of such automatic enrollment shall be the date of the 
written notice, unless an earlier effective date is requested by the 
member or affected dependents, so long as the affected dependents were 
as of the effective date dependents of an active duty member in pay 
grades E-1 to E-4 and residents in a catchment area of a military 
hospital. Dependents who are automatically enrolled under this paragraph 
may disenroll at any time. Such disenrollment shall remain in effect 
until such dependents take specific action to reenroll which such 
dependents may do at any time.
    (p) Civilian preferred provider networks. A major feature of the 
TRICARE program is the civilian preferred provider network.

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    (1) Status of network providers. Providers in the preferred provider 
network are not employees or agents of the Department of Defense or the 
United States Government. Rather, they are independent contractors of 
the government (or other independent entities having business 
arrangements with the government). Although network providers must 
follow numerous rules and procedures of the TRICARE program, on matters 
of professional judgment and professional practice, the network provider 
is independent and not operating under the direction and control of the 
Department of Defense. Each preferred provider must have adequate 
professional liability insurance, as required by the Federal Acquisition 
Regulation, and must agree to indemnify the United States Government for 
any liability that may be assessed against the United States Government 
that is attributable to any action or omission of the provider.
    (2) Utilization management policies. Preferred providers are 
required to follow the utilization management policies and procedures of 
the TRICARE program. These policies and procedures are part of 
discretionary judgments by the Department of Defense regarding the 
methods of delivering and financing health care services that will best 
achieve health and economic policy objectives.
    (3) Quality assurance requirements. A number of quality assurance 
requirements and procedures are applicable to preferred network 
providers. These are for the purpose of assuring that the health care 
services paid for with government funds meet the standards called for in 
the contract or provider agreement.
    (4) Provider qualifications. All preferred providers must meet the 
following qualifications:
    (i) They must be CHAMPUS authorized providers and CHAMPUS 
participating providers.
    (ii) All physicians in the preferred provider network must have 
staff privileges in a hospital accredited by the Joint Commission on 
Accreditation of Health Care Organizations (JCAHO). This requirement may 
be waived in any case in which a physician's practice does not include 
the need for admitting privileges in such a hospital, or in locations 
where no JCAHO accredited facility exists. However, in any case in which 
the requirement is waived, the physician must comply with alternative 
qualification standards as are established by the MTF Commander (or 
other authorized official).
    (iii) All preferred providers must agree to follow all quality 
assurance, utilization management, and patient referral procedures 
established pursuant to this section, to make available to designated 
DoD utilization management or quality monitoring contractors medical 
records and other pertinent records, and to authorize the release of 
information to MTF Commanders regarding such quality assurance and 
utilization management activities.
    (iv) All preferred network providers must be Medicare participating 
providers, unless this requirement is waived based on extraordinary 
circumstances. This requirement that a provider be a Medicare 
participating provider does not apply to providers not eligible to be 
participating providers under Medicare.
    (v) The provider must be available to Extra participants.
    (vi) The provider must agree to accept the same payment rates 
negotiated for Prime enrollees for any person whose care is reimbursable 
by the Department of Defense, including, for example, Extra 
participants, supplemental care cases, and beneficiaries from outside 
the area.
    (vii) All preferred providers must meet all other qualification 
requirements, and agree to comply with all other rules and procedures 
established for the preferred provider network.
    (5) Access standards. Preferred provider networks will have 
attributes of size, composition, mix of providers and geographical 
distribution so that the networks, coupled with the MTF capabilities, 
can adequately address the health care needs of the enrollees. Before 
offering enrollment in Prime to a beneficiary group, the MTF Commander 
(or other authorized person) will assure that the capabilities of the 
MTF plus preferred provider network will meet the following access 
standards with respect to the needs of the

[[Page 321]]

expected number of enrollees from the beneficiary group being offered 
enrollment:
    (i) Under normal circumstances, enrollee travel time may not exceed 
30 minutes from home to primary care delivery site unless a longer time 
is necessary because of the absence of providers (including providers 
not part of the network) in the area.
    (ii) The wait time for an appointment for a well-patient visit or a 
specialty care referral shall not exceed four weeks; for a routine 
visit, the wait time for an appointment shall not exceed one week; and 
for an urgent care visit the wait time for an appointment shall 
generally not exceed 24 hours.
    (iii) Emergency services shall be available and accessible to handle 
emergencies (and urgent care visits if not available from other primary 
care providers pursuant to paragraph (p)(5)(ii) of this section), within 
the service area 24 hours a day, seven days a week.
    (iv) The network shall include a sufficient number and mix of board 
certified specialists to meet reasonably the anticipated needs of 
enrollees. Travel time for specialty care shall not exceed one hour 
under normal circumstances, unless a longer time is necessary because of 
the absence of providers (including providers not part of the network) 
in the area. This requirement does not apply under the Specialized 
Treatment Services Program.
    (v) Office waiting times in nonemergency circumstances shall not 
exceed 30 minutes, except when emergency care is being provided to 
patients, and the normal schedule is disrupted.
    (6) Special reimbursement methods for network providers. The 
Director, OCHAMPUS, may establish, for preferred provider networks, 
reimbursement rates and methods different from those established 
pursuant to Sec. 199.14. Such provisions may be expressed in terms of 
percentage discounts off CHAMPUS allowable amounts, or in other terms. 
In circumstances in which payments are based on hospital-specific rates 
(or other rates specific to particular institutional providers), special 
reimbursement methods may permit payments based on discounts off 
national or regional prevailing payment levels, even if higher than 
particular institution-specific payment rates.
    (7) Methods for establishing preferred provider networks. There are 
several methods under which the MTF Commander (or other authorized 
official) may establish a preferred provider network. These include the 
following:
    (i) There may be an acquisition under the Federal Acquisition 
Regulation, either conducted locally for that catchment area, in a 
larger area in concert with other MTF Commanders, regionally as part of 
a CHAMPUS acquisition, or on some other basis.
    (ii) To the extent allowed by law, there may be a modification by 
the Director, OCHAMPUS, of an existing CHAMPUS fiscal intermediary 
contract to add TRICARE program functions to the existing 
responsibilities of the fiscal intermediary contractor.
    (iii) The MTF Commander (or other authorized official) may follow 
the ``any qualified provider'' method set forth in paragraph (q) of this 
section.
    (iv) Any other method authorized by law may be used.
    (q) Preferred provider network establishment under any qualified 
provider method. The any qualified provider method may be used to 
establish a civilian preferred provider network. Under this method, any 
CHAMPUS-authorized provider within the geographical area involved that 
meets the qualification standards established by the MTF Commander (or 
other authorized official) may become a part of the preferred provider 
network. Such standards must be publicly announced and uniformly 
applied. Also under this method, any provider who meets all applicable 
qualification standards may not be excluded from the preferred provider 
network. Qualifications include:
    (1) The provider must meet all applicable requirements in paragraph 
(p)(4) of this section.
    (2) The provider must agree to follow all quality assurance and 
utilization management procedures established pursuant to this section.
    (3) The provider must be a Participating Provider under CHAMPUS for 
all claims.

[[Page 322]]

    (4) The provider must meet all other qualification requirements, and 
agree to all other rules and procedures, that are established, publicly 
announced, and uniformly applied by the commander (or other authorized 
official).
    (5) The provider must sign a preferred provider network agreement 
covering all applicable requirements. Such agreements will be for a 
duration of one year, are renewable, and may be canceled by the provider 
or the MTF Commander (or other authorized official) upon appropriate 
notice to the other party. The Director, OCHAMPUS shall establish an 
agreement model or other guidelines to promote uniformity in the 
agreements.
    (r) General fraud, abuse, and conflict of interest requirements 
under TRICARE program. All fraud, abuse, and conflict of interest 
requirements for the basic CHAMPUS program, as set forth in this part 
199 (see especially applicable provisions of Sec. 199.9) are applicable 
to the TRICARE program. Some methods and procedures for implementing and 
enforcing these requirements may differ from the methods and procedures 
followed under the basic CHAMPUS program in areas in which the TRICARE 
program has not been implemented.
    (s) Partial implementation. The Assistant Secretary of Defense 
(Health Affairs) may authorize the partial implementation of the TRICARE 
program. The following are examples of partial implementation:
    (1) The TRICARE Extra Plan and the TRICARE Standard Plan may be 
offered without the TRICARE Prime Plan.
    (2) In remote sites, where complete implementation of TRICARE is 
impracticable, TRICARE Prime may be offered to a limited group of 
beneficiaries. In such cases, normal requirements of TRICARE Prime which 
the Assistant Secretary of Defense (Health Affairs) determines are 
impracticable may be waived.
    (3) The TRICARE program may be limited to particular services, such 
as mental health services.
    (t) Inclusion of Department of Veterans Affairs Medical Centers in 
TRICARE networks. TRICARE preferred provider networks may include 
Department of Veterans Affairs health facilities pursuant to 
arrangements, made with the approval of the Assistant Secretary of 
Defense (Health Affairs), between those centers and the Director, 
OCHAMPUS, or designated TRICARE contractor.
    (u) Care provided outside the United States to dependents of active 
duty members. The Assistant Secretary of Defense (Health Affairs) may, 
in conjunction with implementation of the TRICARE program, authorize a 
special CHAMPUS program for dependents of active duty members who 
accompany the members in their assignments in foreign countries. Under 
this special program, a preferred provider network will be established 
through contracts or agreements with selected health care providers. 
Under the network, CHAMPUS covered services will be provided to the 
covered dependents with all CHAMPUS requirements for deductibles and 
copayments waived. The use of this authority by the Assistant Secretary 
of Defense (Health Affairs) for any particular geographical area will be 
announced in the Federal Register. The announcement will include a 
description of the preferred provider network program and other 
pertinent information.
    (v) Administrative procedures. The Assistant Secretary of Defense 
(Health Affairs), the Director, TRICARE Management Activity, and MTF 
Commanders (or other authorized officials) are authorized to establish 
administrative requirements and procedures, consistent with this 
section, this part, and other applicable DoD Directives or Instructions, 
for the implementation and operation of the TRICARE program.

[60 FR 52095, Oct. 5, 1995, as amended at 63 FR 9142, Feb. 24, 1998; 63 
FR 48447, Sept. 10, 1998; 64 FR 13913, Mar. 23, 1999; 65 FR 39805, June 
28, 2000; 65 FR 45425, July 21, 2000; 66 FR 9655, Feb. 9, 2001; 66 FR 
40608, Aug. 3, 2001; 67 FR 5479, Feb. 6, 2002; 67 FR 6409, Feb. 12, 
2002; 68 FR 23033, Apr. 30, 2003; 68 FR 32363, May 30, 2003; 68 FR 
44881, 44883, July 31, 2003; 70 FR 19266, Apr. 13, 2005]



Sec. 199.18  Uniform HMO Benefit.

    (a) In general. There is established a Uniform HMO Benefit. The 
purpose of the Uniform HMO benefit is to establish a health benefit 
option modeled on health maintenance organization plans. This benefit is 
intended to be

[[Page 323]]

uniform wherever offered throughout the United States and to be included 
in all managed care programs under the MHSS. Most care purchased from 
civilian health care providers (outside an MTF) will be under the rules 
of the Uniform HMO Benefit or the Basic CHAMPUS Program (see Sec. 
199.4). The Uniform HMO Benefit shall apply only as specified in this 
section or other sections of this part, and shall be subject to any 
special applications indicated in such other sections.
    (b) Services covered under the uniform HMO benefit option. (1) 
Except as specifically provided or authorized by this section, all 
CHAMPUS benefits provided, and benefit limitations established, pursuant 
to this part, shall apply to the Uniform HMO Benefit.
    (2) Certain preventive care services not normally provided as part 
of basic program benefits under CHAMPUS are covered benefits when 
provided to Prime enrollees by providers in the civilian provider 
network. Standards for preventive care services shall be developed based 
on guidelines from the U.S. Department of Health and Human Services. 
Such standards shall establish a specific schedule, including frequency 
or age specifications for:
    (i) Laboratory and x-ray tests, including blood lead, rubella, 
cholesterol, fecal occult blood testing, and mammography;
    (ii) Pap smears;
    (iii) Eye exams;
    (iv) Immunizations;
    (v) Periodic health promotion and disease prevention exams;
    (vi) Blood pressure screening;
    (vii) Hearing exams;
    (viii) Sigmoidoscopy or colonoscopy;
    (ix) Serologic screening; and
    (x) Appropriate education and counseling services. The exact 
services offered shall be established under uniform standards 
established by the Assistant Secretary of Defense (Health Affairs).
    (3) In addition to preventive care services provided pursuant to 
paragraph (b)(2) of this section, other benefit enhancements may be 
added and other benefit restrictions may be waived or relaxed in 
connection with health care services provided to include the Uniform HMO 
Benefit. Any such other enhancements or changes must be approved by the 
Assistant Secretary of Defense (Health Affairs) based on uniform 
standards.
    (c) Enrollment fee under the uniform HMO benefit. (1) The CHAMPUS 
annual deductible amount (see Sec. 199.4(f)) is waived under the 
Uniform HMO Benefit during the period of enrollment. In lieu of a 
deductible amount, an annual enrollment fee is applicable. The specific 
enrollment fee requirements shall be published annually by the Assistant 
Secretary of Defense (Health Affairs), and shall be uniform within the 
following groups: dependents of active duty members in pay grades of E-4 
and below; active duty dependents of sponsors in pay grades E-5 and 
above; and retirees and their dependents.
    (2) Amount of enrollment fees. In fiscal year 2001, the annual 
enrollment fee for retirees and their dependents is $230 individual, 
$460 family.
    (3) Waiver of enrollment fee for certain beneficiaries. The 
Assistant Secretary of Defense (Health Affairs) may waive the enrollment 
fee requirements of this section for Medicare-eligible beneficiaries.
    (d) Outpatient cost sharing requirements under the uniform HMO 
benefit--(1) In general. In lieu of usual CHAMPUS cost sharing 
requirements (see Sec. 199.4(f)), special reduced cost sharing 
percentages or per service specific dollar amounts are required. The 
specific requirements shall be uniform and shall be published 
periodically by the Assistant Secretary of Defense (Health Affairs). For 
care provided on or after April 1, 2001, no copayment shall be charged 
for care provided under TRICARE Prime to a dependent of an active duty 
member, except for the copayments charged under the Pharmacy Benefits 
Program (see Sec. 199.21) and under the point of service option of 
TRICARE Prime (see Sec. 199.17(n)(4)).
    (2) Structure of outpatient cost sharing. The special cost sharing 
requirements for outpatient services include the following specific 
structural provisions:
    (i) For most physician office visits and other routine services, 
there is a per visit fee for retirees and their dependents. This fee 
applies to primary care and specialty care visits, except as

[[Page 324]]

provided elsewhere in this paragraph (d)(2) of this section. It also 
applies to family health services, home health care visits, eye 
examinations, and immunizations. It does not apply to ancillary health 
services or to preventive health services described in paragraph (b)(2) 
of this section, or to maternity services under Sec. 199.4(e)(16).
    (ii) There is a copayment for outpatient mental health visits. It is 
a per visit fee for retirees and their dependents for individual visits. 
For group visits, there is a lower per visit fee for retirees and their 
dependents.
    (iii) There is a cost share of durable medical equipment, prosthetic 
devices, and other authorized supplies for retirees and their 
dependents.
    (iv) For emergency room services, there is a per visit fee for 
retirees and their dependents.
    (v) For ambulatory surgery services, there is a per service fee for 
retirees and their dependents.
    (vi) There is a copayment for prescription drugs per prescription, 
including medical supplies necessary for administration, for dependents 
of active duty members and for retirees and their dependents under the 
Pharmacy Benefits Program (see Sec. 199.17(m)(5)).
    (vii) There is a copayment for ambulance services for retirees and 
their dependents.
    (3) Amount of outpatient cost sharing requirements. In fiscal year 
2001, the outpatient cost sharing requirements are as follows:
    (i) For most physician office visits and other routine services, as 
described in paragraph (d)(2)(i) of this section, the per visit fee for 
retirees and their dependents is $12.
    (ii) For outpatient mental health visits, the per visit fee for 
retirees and their dependents is $25. For group outpatient mental health 
visits, there is a lower per visit fee for retirees and their dependents 
of $17.
    (iii) The cost share for durable medical equipment, prosthetic 
devices, and other authorized supplies for retirees and their dependents 
is 20 percent of the negotiated fee.
    (iv) For emergency room services, the per visit fee for retirees and 
their dependents is $30.
    (v) For primary surgeon services in ambulatory surgery, the per 
service fee for retirees and their dependents is $25.
    (vi) The copayments for prescription drugs are established under the 
Pharmacy Benefits Program (see Sec. 199.21).
    (vii) The copayment for ambulance services for retirees and their 
dependents is $20.
    (e) Inpatient cost sharing requirements under the uniform HMO 
benefit--(1) In general. In lieu of usual CHAMPUS cost sharing 
requirements (see Sec. 199.4(f)), special cost sharing amounts are 
required. The specific requirements shall be uniform and shall be 
published periodically by the Assistant Secretary of Defense (Health 
Affairs). For services provided on or after April 1, 2001, no co-payment 
shall be charged for inpatient care provided under TRICARE Prime to a 
dependent of an active duty member except under the point of service 
option of TRICARE Prime (see Sec. 199.17(n)(4)). In addition, for 
services provided on or after April 1, 2001, no copayment shall be 
charged for inpatient care provided under TRICARE Prime to a dependent 
of an active duty member in military medical treatment facilities.
    (2) Structure of cost sharing. For services other than mental 
illness or substance use treatment, there is a nominal copayment for 
retired members, dependents of retired members, and survivors. For 
inpatient mental health and substance use treatment, a separate per day 
charge is established. For services provided on or after April 1, 2001, 
no inpatient copayment shall be charged an active duty dependent 
enrolled in TRICARE Prime. This elimination of inpatient copayments 
applies to active duty dependents enrolled in TRICARE Prime who are 
admitted to a civilian or military inpatient facility.
    (3) Amount of inpatient cost sharing requirements. In fiscal year 
2001, the inpatient cost sharing requirements for retirees and their 
dependents for acute care admissions and other non-mental health/
substance use treatment admissions is a per diem charge of $11, with a 
minimum charge of $25 per admission. For mental health/substance use 
treatment admissions, and for partial hospitalization services, the per 
diem

[[Page 325]]

charge for retirees and their dependents is $40.
    (f) Limit on out-of-pocket costs under the uniform HMO benefit. (1) 
Total out-of-pocket costs per family of dependents of active duty 
members under the Uniform HMO Benefit may not exceed $1,000 during the 
one-year enrollment period. Total out-of-pocket costs per family of 
retired members, dependents of retired members and survivors under the 
Uniform HMO Benefit may not exceed $3,000 during the one-year enrollment 
period. For this purpose, out-of-pocket costs means all payments 
required of beneficiaries under paragraphs (c), (d), and (e) of this 
section. In any case in which a family reaches this limit, all remaining 
payments that would have been required of the beneficiary under 
paragraphs (c), (d), and (e) of this section will be made by the program 
in which the Uniform HMO Benefit is in effect.
    (2) The limits established by paragraph (f)(1) of this section do 
not apply to out-of-pocket costs incurred pursuant to paragraph 
(m)(1)(i) or (m)(2)(i) of Sec. 199.17 under the point-of-service option 
of TRICARE Prime.
    (g) Updates. The enrollment fees for fiscal year 2001 set under 
paragraph (c) of this section and the per service specific dollar 
amounts for fiscal year 2001 set under paragraphs (d) and (e) of this 
section may be updated for subsequent years to the extent necessary to 
maintain compliance with statutory requirements pertaining to government 
costs. This updating does not apply to cost sharing that is expressed as 
a percentage of allowable charges; these percentages will remain 
unchanged.

[60 FR 52101, Oct. 5, 1995, as amended at 63 FR 9143, Feb. 24, 1998; 63 
FR 48448, Sept. 10, 1998; 66 FR 9656, Feb. 9, 2001; 66 FR 16400, Mar. 
26, 2001]



Sec. 199.20  Continued Health Care Benefit Program (CHCBP).

    (a) Purpose. The CHCBP is a premium based temporary health care 
coverage program that will be available to qualified beneficiaries (set 
forth in paragraph (d)(1) of this section). Medical coverage under this 
program will mirror the benefits offered via the basic CHAMPUS program. 
Premium costs for this coverage are payable by enrollees to a Third 
Party Administrator. The CHCBP is not part of the CHAMPUS program. 
However, as set forth in this section, it functions under most of the 
rules and procedures of CHAMPUS. Because the purpose of the CHCBP is to 
provide a continuation health care benefit for the Department of Defense 
and the other Uniformed Services (e.g., NOAA, PHS, and the Coast Guard) 
health care beneficiaries losing eligibility, it will be administered so 
that it appears, to the maximum extent possible, to be part of CHAMPUS.
    (b) General provisions. Except for any provisions the Director, 
OCHAMPUS may exclude, the general provisions of Sec. 199.1 shall apply 
to the CHCBP as they do to CHAMPUS.
    (c) Definitions. Except as may be specifically provided in this 
section, to the extent terms defined in Sec. 199.2 are relevant to the 
administration of the CHCBP, the definitions contained in that section 
shall apply to the CHCBP as they do to CHAMPUS.
    (d) Eligibility and enrollment--(1) Eligibility. Enrollment in the 
CHCBP is open to the following individuals:
    (i) Members of Uniformed Services, who:
    (A) Are discharged or released from active duty (or full time 
National Guard duty), whether voluntarily or involuntarily, under other 
than adverse conditions;
    (B) Immediately preceding that discharge or release, were entitled 
to medical and dental care under 10 U.S.C. 1074(a) (except in the case 
of a member discharged or released from full-time National Guard duty); 
and,
    (C) After that discharge or release and any period of transitional 
health care provided under 10 U.S.C. 1145(a) would not otherwise be 
eligible for any benefit under 10 U.S.C. chapter 55.
    (ii) A person who:
    (A) Ceases to meet requirements for being considered an unmarried 
dependent child of a member or former member of the armed forces under 
10 U.S.C. 1072(2)(D);
    (B) On the day before ceasing to meet those requirements, was 
covered under a health benefits plan under 10 U.S.C. chapter 55, or 
transitional health care under 10 U.S.C. 1145(a) as a dependent of the 
member or former member; and,

[[Page 326]]

    (C) Would not otherwise be eligible for any benefits under 10 U.S.C. 
chapter 55.
    (iii) A person who:
    (A) Is an unremarried former spouse of a member or former member of 
the armed forces;
    (B) On the day before the date of the final decree of divorce, 
dissolution, or annulment was covered under a health benefits plan under 
10 U.S.C. chapter 55, or transitional health care under 10 U.S.C. 
1145(a) as a dependent of the member or former member; and,
    (C) Is not a dependent of the member or former member under 10 
U.S.C. 1072(2)(F) or (G) or ends a one-year period of dependency under 
10 U.S.C. 1072(2)(H).
    (iv) An unmarried person who:
    (A) Is placed in the legal custody of a member or former member by a 
court or who is placed in the home of a member or former member by a 
recognized placement agency in anticipation of the legal adoption of the 
child; and
    (B) Either:
    (1) Has not attained the age of 21 if not in school or age 23 if 
enrolled in a full time course of study at an institution of higher 
learning; or
    (2) Is incapable of self-support because of a mental or physical 
incapacity which occurred while the person was considered a dependent of 
the member or former member; and
    (C) Is dependent on the member or former member for over one-half of 
the person's support; and
    (D) Resides with the member or former member unless separated by the 
necessity of military service or to receive institutional care as a 
result of disability or incapacitation; and
    (E) Is not a dependent of a member or former member as described in 
Sec. 199.3(b)(2).
    (2) Effective date. Except for the special transitional provisions 
in paragraph (r) of this section, eligibility in the CHCBP is limited to 
individuals who lost their entitlement to regular military health 
services system benefits on or after October 1, 1994.
    (3) Notification of eligibility. (i) The Department of Defense and 
the other Uniformed Services (National Oceanic and Atmospheric 
Administration (NOAA), Public Health Service (PHS), Coast Guard) will 
notify persons eligible to receive health benefits under the CHCBP.
    (ii) In the case of a member who becomes (or will become) eligible 
for continued coverage, the Department of Defense shall notify the 
member of their rights for coverage as part of pre-separation counseling 
conducted under 10 U.S.C. 1142.
    (iii) In the case of a child of a member or former member who 
becomes eligible for continued coverage:
    (A) The member or former member may submit to the Third Party 
Administrator a notice of the child's change in status (including the 
child's name, address, and such other information needed); and
    (B) The Third Party Administrator, within 14 days after receiving 
such information, will inform the child of the child's rights under 10 
U.S.C. 1142.
    (iv) In the case of a former spouse of a member or former member who 
becomes eligible for continued coverage, the Third Party Administrator 
will notify the individual of eligibility for CHCBP when he or she 
declares the change in marital status to a military personnel office.
    (4) Election of coverage. (i) In order to obtain continued coverage, 
written election by eligible beneficiary must be made, within a 
prescribed time period. In the case of a member discharged or released 
from active duty (or full time National Guard duty), whether voluntarily 
or involuntarily; an unremarried spouse of a member or former member; or 
a child emancipated from a member or former member, the written election 
shall be submitted to the Third Party Administrator before the end of 
the 60-day period beginning on the later of:
    (A) The date of the discharge or release of the member from active 
duty or full-time National Guard duty;
    (B) The date on which the period of transitional health care 
applicable to the member under 10 U.S.C. 1145(a) ends;
    (C) In the case of an unremarried former spouse of a member or 
former member, the date the one-year extension of dependency under 10 
U.S.C. 1072(2)(H) expires; or
    (D) The date the member receives the notification of eligibility.

[[Page 327]]

    (ii) A member of the armed forces who is eligible for enrollment 
under paragraph (d)(1)(i) of this section may elect self-only or family 
coverage. Family members who may be included in such family coverage are 
the spouse and children of the member.
    (5) Enrollment. Enrollment in the Continued Health Care Benefit 
Program will be accomplished by submission of an application to a Third 
Party Administrator (TPA). Upon submittal of an application to the Third 
Party Administrator, the enrollee must submit proof of eligibility. One 
of the following types of evidence will validate eligibility for care:
    (i) A Defense Enrollment Eligibility Reporting System (DEERS) 
printout which indicates the appropriate sponsor status and the 
sponsor's and dependent's eligibility dates;
    (ii) A copy of a verified and approved DD Form 1172, ``Application 
for Uniformed Services Identification and Privilege Card'';
    (iii) A front and back copy of a DD Form 1173, ``Uniformed Services 
Identification and Privilege Card'' overstamped ``TA'' for Transition 
Assistance Management Program; or
    (iv) A copy of a DD Form 214--``Certificate of Release or Discharge 
from Active Duty''.
    (6) Period of coverage. CHCBP coverage may not extend beyond:
    (i) For a member discharged or released from active duty (or full 
time National Guard duty), whether voluntarily or involuntarily, the 
date which is 18 months after the date the member ceases to be entitled 
to care under 10 U.S.C. 1074(a) and any transitional care under 10 
U.S.C. 1145.
    (ii) In the case of an unmarried dependent child of a member or 
former member, the date which is 36 months after the date on which the 
person first ceases to meet the requirements for being considered an 
unmarried dependent child under 10 U.S.C. 1072(2)(D).
    (iii) In the case of an unremarried former spouse of a member or 
former member, the date which is 36 months after the later of:
    (A) The date on which the final decree of divorce, dissolution, or 
annulment occurs; or
    (B) If applicable, the date the one-year extension of dependency 
under 10 U.S.C. 1072(2)(H) expires.
    (iv) In the case of an unremarried former spouse of a member or 
former member, whose divorce occurred prior to the end of transitional 
coverage, the period of coverage under the CHCBP is unlimited, if:
    (A) Has not remarried before the age of 55; and
    (B) Was enrolled in the CHCBP as the dependent of an involuntarily 
separated member during the 18-month period before the date of the 
divorce, dissolution, or annulment; and
    (C) Is receiving a portion of the retired or retainer pay of a 
member or former member or an annuity based on the retainer pay of the 
member; or
    (D) Has a court order for payment of any portion of the retired or 
retainer pay; or
    (E) Has a written agreement (whether voluntary or pursuant to a 
court order) which provides for an election by the member or former 
member to provide an annuity to the former spouse.
    (v) For the beneficiary who becomes eligible for the Continued 
Health Care Benefit Program by ceasing to meet the requirements for 
being considered an unmarried dependent child of a member or former 
member, health care coverage may not extend beyond the date which is 36 
months after the date the member becomes ineligible for medical and 
dental care under 10 U.S.C. 1074(a) and any transitional health care 
under 10 U.S.C. 1145(a).
    (vi) Though beneficiaries have sixty-days (60) to elect coverage 
under the CHCBP, upon enrolling, the period of coverage must begin the 
day after entitlement to a military health care plan (including 
transitional health care under 10 U.S.C. 1145(a)) ends.
    (e) CHCBP benefits--(1) In general. Except as provided in paragraph 
(e)(2) of this section, the provisions of Sec. 199.4 shall apply to the 
CHCBP as they do to CHAMPUS.
    (2) Exceptions. The following provisions of Sec. 199.4 are not 
applicable to the CHCBP:
    (i) Paragraph (a)(2) of this section concerning eligibility:

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    (ii) All provisions regarding nonavailability statements or 
requirements to use facilities of the Uniformed Services.
    (3) Beneficiary liability. For purposes of CHAMPUS deductible and 
cost sharing requirements and catastrophic cap limits, amounts 
applicable to the categories of beneficiaries to which the CHCBP 
enrollee last belonged shall continue to apply, except that for 
separating active duty members, amounts applicable to dependents of 
active duty members shall apply.
    (f) Authorized providers. The provisions of Sec. 199.6 shall apply 
to the CHCBP as they do to CHAMPUS.
    (g) Claims submission, review, and payment. The provisions of Sec. 
199.7 shall apply to the CHCBP as they do to CHAMPUS, except that no 
provisions regarding nonavailability statements shall apply.
    (h) Double coverage. The provisions of Sec. 199.8 shall apply to 
the CHCBP as they do to CHAMPUS.
    (i) Fraud, abuse, and conflict of interest. Administrative remedies 
for fraud, abuse and conflict of interest. The provisions of Sec. 199.9 
shall apply to the CHCBP as they do to CHAMPUS.
    (j) Appeal and hearing procedures. The provisions of Sec. 199.10 
shall apply to the CHCBP as they do to CHAMPUS.
    (k) Overpayment recovery. The provisions of Sec. 199.11 shall apply 
to the CHCBP as they do to CHAMPUS.
    (l) Third Party recoveries. The provisions of Sec. 199.12 shall 
apply to the CHCBP as they do to CHAMPUS.
    (m) Provider reimbursement methods. The provisions of Sec. 199.14 
shall apply to the CHCBP as they do to CHAMPUS.
    (n) Peer Review Organization Program. The provisions of Sec. 199.15 
shall apply to the CHCBP as they do to CHAMPUS.
    (o) Preferred provider organization programs available. Any 
preferred provider organization program under this part that provides 
for reduced cost sharing for using designated providers, such as the 
``TRICARE Extra'' option under Sec. 199.17, shall be available to 
participants in the CHCBP as it is to CHAMPUS beneficiaries.
    (p) Special programs not applicable--(1) In general. Special 
programs established under this part that are not part of the basic 
CHAMPUS program established pursuant to 10 U.S.C. 1079 and 1086 are not, 
unless specifically provided in this section, available to participants 
in the CHCBP.
    (2) Examples. The special programs referred to in paragraph (p)(1) 
of this section include:
    (i) The Extended Care Health Option (ECHO) under Sec. 199.5.
    (ii) The Active Duty Dependents Dental Plan under Sec. 199.13;
    (iii) The Supplemental Health Care Program under Sec. 199.16; and
    (iv) The TRICARE Enrollment Program under Sec. 199.17, except for 
TRICARE Extra program under that section.
    (3) Exemptions to the restriction. In addition to the provision to 
make TRICARE Extra available to CHCBP beneficiaries, the following two 
demonstration projects are also available to CHCBP enrollees:
    (i) Home Health Care Demonstration; and
    (ii) Home Health Care-Case Management Demonstration.
    (q) Premiums--(1) Rates. Premium rates will be established by the 
Assistant Secretary of Defense (Health Affairs) for two rate groups--
individual and family. Eligible beneficiaries will select the level of 
coverage they require at the time of initial enrollment (either 
individual or family) and pay the appropriate premium payment. The rates 
are based on Federal Employee Health Benefit Program employee and agency 
contributions required for a comparable health benefits plan, plus an 
administrative fee. The administrative fee, not to exceed ten percent of 
the basic premium amount, shall be determined based on actual expected 
administrative costs for administration of the program. Premiums may be 
revised annually and shall be published annually for each fiscal year. 
Premiums will be paid by enrollees quarterly.
    (2) Effects of failure to make premium payments. Failure by 
enrollees to submit timely and proper premium payments will result in 
denial of continued enrollment and denial of payment of medical claims. 
Premium payments which are late 30 days or more past the start of the 
quarter for which

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payment is due will result in the ending of beneficiary enrollment. 
Beneficiaries denied continued enrollment due to lack of premium 
payments will not be allowed to reenroll. In such a case, benefit 
coverage will cease at the end of the ninety day (90) period for which a 
premium payment was received. Enrollees will be held liable for medical 
costs incurred after losing eligibility.
    (r) Transitional provisions. (1) There will be a sixty-day period of 
enrollment for all eligible beneficiaries (outlined in paragraph (d)(1) 
of this section) whose entitlement to regular military health services 
system coverage ended on or after August 2, 1994, but prior to the CHCBP 
implementation on October 1, 1994.
    (2) Enrollment in the U.S. VIP program may continue up to October 1, 
1994. Policies written prior to October 1, 1994, will remain in effect 
until the end of the policy life.
    (3) On or after the October 1, 1994, implementation of the Continued 
Health Care Benefit Program, beneficiaries who enrolled in the U.S. VIP 
program prior to October 1, 1994, may elect to cancel their U.S. VIP 
policy and enroll in the CHCBP.
    (4) With the exception of persons enrolled in the U.S. VIP program 
who may convert to the CHCBP, individuals who lost their entitlement to 
regular military health services system coverage prior to August 2, 
1994, are not eligible for the CHCBP.
    (s) Procedures. The Director, OCHAMPUS, may establish other rules 
and procedures for the administration of the Continued Health Care 
Benefit Program.

[59 FR 49818, Sept. 30, 1994, as amended at 62 FR 35097, June 30, 1997; 
64 FR 46141, Aug. 24, 1999; 69 FR 51569, Aug. 20, 2004]



Sec. 199.21  Pharmacy benefits program.

    (a) General--(1) Statutory authority. Title 10, U.S. Code, Section 
1074g requires that the Department of Defense establish an effective, 
efficient, integrated pharmacy benefits program for the Military Health 
System. This law is independent of a number of sections of Title 10 and 
other laws that affect the benefits, rules, and procedures of TRICARE, 
resulting in changes to the rules otherwise applicable to TRICARE Prime, 
Standard, and Extra.
    (2) Pharmacy benefits program. The pharmacy benefits program, which 
includes the uniform formulary and its associated tiered co-payment 
structure, is applicable to all of the uniformed services. Its 
geographical applicability is all 50 states and the District of 
Columbia, Guam, Puerto Rico, and the Virgin Islands. In addition, if 
authorized by the Assistant Secretary of Defense (Health Affairs), the 
TRICARE program may be implemented in areas outside the 50 states and 
the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. In 
such case, the Assistant Secretary of Defense (Health Affairs) may also 
authorize modifications to the pharmacy benefits program rules as may be 
appropriate to the areas involved.
    (3) Uniform formulary. The pharmacy benefits program features a 
uniform formulary of pharmaceutical agents as defined in Sec. 199.2.
    (i) The uniform formulary will assure the availability of 
pharmaceutical agents in the complete range of therapeutic classes 
authorized as basic program benefits.
    (ii) As required by 10 U.S.C. 1074g(a)(2) and implemented under the 
procedures established by paragraphs (e) and (f) of this seciton, 
pharmaceutical agents in each therapeutic class are selected for 
inclusion on the uniform formulary based upon the relative clinical 
effectiveness and cost effectiveness of the agents in such class. If a 
pharmaceutical agent in a therapeutic class is determined by the 
Department of Defense Pharmacy and Therapeutics Committee not to have a 
significant, clinically meaningful therapeutic advantage in terms of 
safety, effectiveness, or clinical outcome over other pharmaceutical 
agents included on the uniform formulary, the Committee may recommend it 
be classified as a non-formulary agent. In addition, if the evaluation 
by the Pharmacy and Therapeutics Committee concludes that a 
pharmaceutical agent in a therapeutic class is not cost effective 
relative to other pharmaceutical agents in that therapeutic class, 
considering costs, safety, effectiveness, and clinical outcomes, the 
Committee

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may recommend it be classified as a non-formulary agent.
    (iii) Pharmaceutical agents which are used exclusively in medical 
treatments or procedures that are expressly excluded from the TRICARE 
benefit by statute or regulation will not be considered for inculsion on 
the uniform formulary. Excluded pharmaceutical agents shall not be 
available as non-formulary agents, nor will they be cost-shared under 
the TRICARE pharmacy benefits program.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to Sec. 199.2. The following definitions apply 
only to this section:
    (1) Clinically necessary. Also referred to as clinical necessity. 
Sufficient evidence submitted by a beneficiary or provider on behalf of 
the beneficiary that establishes that one or more of the following 
conditions exist: The use of formulary pharmaceutical agents is 
contraindicated; the patient experiences significant adverse effects 
from formulary pharmaceutical agents in the therapeutic class, or is 
likely to experience significant adverse effects from formulary 
pharmaceutical agents in the therapeutic class; formulary pharmaceutical 
agents result in therapeutic failure, or the formulary pharmaceutical 
agent is likely to result in therapeutic failure; the patient previously 
responded to a non-formulary pharmaceutical agent and changing to a 
formulary pharmaceutical agent would incur an unacceptable clinical 
risk; or there is no alternative pharmaceutical agent on the formulary.
    (2) Therapeutic class. A group of pharmaceutical agents that are 
similar in chemical structure, pharmacological effect, and/or clinical 
use.
    (c) Department of Defense Pharmacy and Therapeutics Committee--(1) 
Purpose. The Department of Defense Pharmacy and Therapeutics Committee 
is established by 10 U.S.C. 1074g to assure that the selection of 
pharmaceutical agents for the uniform formulary is based on broadly 
representative professional expertise concerning relative clinical and 
cost effectiveness of pharmaceutical agents and accomplishes an 
effective, efficient, integrated pharmacy benefits program.
    (2) Composition. As required by 10 U.S.C. 1074g(b), the committee 
includes representatives of pharmacies of the uniformed services 
facilities and representatives of providers in facilities of the 
uniformed services. Committee members will have expertise in treating 
the medical needs of the populations served through such entities and in 
the range of pharmaceutical and biological medicines available for 
treating such populations.
    (3) Executive Council. The Pharmacy and Therapeutics Committee may 
have an Executive Council, composed of those voting and non-voting 
members of the Committee who are military or civilian employees of the 
Department of Defense. The function of the Executive Council is to 
review and analyze issues relating to the operation of the uniform 
formulary, including issues of an inherently governmental nature, 
procurement sensitive information, and matters affecting military 
readiness. The Executive Council presents information to the Pharmacy 
and Therapeutics Committee, but is not authorized to act for the 
Committee.
    (d) Uniform Formulary Beneficiary Advisory Panel. As required by 10 
U.S.C. 1074g(c), a Uniform Formulary Beneficiary Advisory Panel reviews 
and comments on the development of the uniform formulary. The Panel 
includes members that represent non-governmental organizations and 
associations that represent the views and interests of a large number of 
eligible covered beneficiaries, contractors responsible for the TRICARE 
retail pharmacy program, contractors responsible for the TRICARE mail-
order pharmacy program, and TRICARE network providers. The panel will 
meet after each Pharmacy and Therapeutics Committee quarterly meeting. 
The Panel's comments will be submitted to the Director, TRICARE 
Management Activity. The Director will consider the comments before 
implementing the uniform formulary or any recommendations for change 
made by the Pharmacy and Therapeutics Committee. The Panel will function 
in accordance with the Federated Advisory Committee Act (5 U.S.C. App. 
2).

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    (e) Determinations regarding relative clinical and cost 
effectiveness for the selection of pharmaceutical agents for the uniform 
formulary--(1) Clinical effectiveness. (i) It is presumed that 
pharmaceutical agents in a therapeutic class are clinically effective 
and should be included on the uniform formulary unless the Pharmacy and 
Therapeutics Committee finds by a majority vote that a pharmaceutical 
agent does not have a significant, clinically meaningful therapeutic 
advantage in terms of safety, effectiveness, or clinical outcome over 
the other pharmaceutical agents included on the uniform formulary in 
that therapeutic class. This determination is based on the collective 
professional judgment of the DoD Pharmacy and Therapeutics Committee and 
consideration of pertinent information from a variety of sources 
determined by the Committee to be relevant and reliable. The DoD 
Pharmacy and Therapeutics Committee has discretion based on its 
collective professional judgment in determining what sources should be 
reviewed or relied upon in evaluating the clinical effectiveness of a 
pharmaceutical agent in a therapeutic class.
    (ii) Sources of information may include but are not limited to:
    (A) Medical and pharmaceutical textbooks and reference books;
    (B) Clinical literature;
    (C) U.S. Food and Drug Administration determinations and 
information;
    (D) Information from pharmaceutical companies;
    (E) Clinical practice guidelines, and
    (F) Expert opinion.
    (iii) The DoD Pharmacy and Therapeutics Committee will evaluate the 
relative clinical effectiveness of pharmaceutical agents within a 
therapeutic class by considering information about their safety, 
effectiveness, and clinical outcome.
    (iv) Information considered by the Committee may include but is not 
limited to:
    (A) U.S. Food and Drug Administration approved and other studied 
indications;
    (B) Pharmacology;
    (C) Pharmacokinetics;
    (D) Contraindications;
    (E) Warnings/precautions;
    (F) Incidence and severity of adverse effects;
    (G) Drug to drug, drug to food, and drug to disease interactions;
    (H) Availability, dosing, and method of administration;
    (I) Epidemiology and relevant risk factors for diseases/conditions 
in which the pharmaceutical agents are used;
    (J) Concomitant therapies;
    (K) Results of safety and efficacy studies;
    (L) Results of effectiveness/clinical outcomes studies, and
    (M) Results of meta-analyses.
    (2) Cost effectiveness. (i) In considering the relative cost 
effectiveness of pharmaceutical agents in a therapeutic class, the DoD 
Pharmacy and Therapeutics Committee shall evaluate the costs of the 
agents in relation to the safety, effectiveness, and clinical outcomes 
of the other agents in the class.
    (ii) Information considered by the Committee concerning the relative 
cost effectiveness of pharmaceutical agents may include but is not 
limited to:
    (A) Cost of the pharmaceutical agent to the Government;
    (B) Impact on overall medical resource utilization and costs;
    (C) Cost-efficacy studies;
    (D) Cost-effectiveness studies;
    (E) Cross-sectional or retrospective economic evaluations;
    (F) Pharmacoeconomic models;
    (G) Patent expiration dates;
    (H) Clinical practice guideline recommendations, and
    (I) Existence of existing or proposed blanket purchase agreements, 
incentive price agreements, or contracts.
    (f) Evaluation of pharmaceutical agents for determinations regarding 
inclusion on the uniform formulary. The DoD Pharmacy and Therapeutics 
Committee will periodically evaluate or re-evaluate individual 
pharmaceutical agents and therapeutic classes of pharmaceutical agents 
for determinations regarding inclusion or continuation on the uniform 
formulary. Such evaluation or re-evaluation may be prompted by a variety 
of circumstances including, but not limited to:
    (1) Approval of a new pharmaceutical agent by the U.S. Food and Drug 
Administration;

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    (2) Approval of a new indication for an existing pharmaceutical 
agent;
    (3) Changes in the clinical use of existing pharmaceutical agents;
    (4) New information concerning the safety, effectiveness or clinical 
outcomes of existing pharmaceutical agents;
    (5) Price changes;
    (6) Shifts in market share;
    (7) Scheduled review of a therapeutic class; and
    (8) Requests from Pharmacy and Therapeutics Committee members, 
military treatment facilities, or other Military Health System 
officials.
    (g) Administrative procedures for establishing and maintaining the 
uniform formulary--(1) Pharmacy and Therapeutics Committee 
determinations. Determinations of the Pharmacy and Therapeutics 
Committee are by majority vote and recorded in minutes of Committee 
meetings. The minutes set forth the determinations of the committee 
regarding the pharmaceutical agents selected for inclusion in the 
uniform formulary and summarize the reasons for those determinations. 
For any pharmaceutical agent (including maintenance medications) for 
which a recommendation is made that the status of the agent be changed 
from the formulary tier to the non-formulary tier of the uniform 
formulary, or that the agent requires a pre-authorization, the Committee 
shall also make a recommendation as to effective date of such change 
that will not be longer than 180 days from the final decision date but 
may be less. The minutes will include a record of the number of members 
voting for and against the Committee's action.
    (2) Beneficiary Advisory Panel. Comments and recommendations of the 
Beneficiary Advisory Panel are recorded in minutes of Panel meetings. 
The minutes set forth the comments and recommendations of the Panel and 
summarize the reasons for those comments and recommendations. The 
minutes will include a record of the number of members voting for or 
against the Panel's comments and recommendations.
    (3) Uniform formulary final decisions. The Director of the TRICARE 
Management Activity makes the final DoD decisions regarding the uniform 
formulary. Those decisions are based on the Director's review of the 
final determinations of the Pharmacy and Therapeutics Committee and the 
comments and recommendations of the Beneficiary Advisory Panel. No 
pharmaceutical agent may be designated as non-formulary on the uniform 
formulary unless it is preceded by such recommendation by the Pharmacy 
and Therapeutics Committee. The decisions of the Director of the TRICARE 
Management Activity are in writing and establish the effective date(s) 
of the uniform formulary actions.
    (h) Obtaining pharmacy services under the pharmacy benefits 
program--(1) Points of service. There are four outpatient pharmacy 
points of service:
    (i) Military Treatment Facilities (MTFs);
    (ii) Retail network pharmacies: Those are non-MTF pharmacies that 
are a part of the network established for TRICARE retail pharmacy 
services;
    (iii) Retail non-network pharmacies: Those are non-MTF pharmacies 
that are not part of the network established for TRICARE retail pharmacy 
services, and
    (iv) the TRICARE Mail Order Pharmacy (TMOP).
    (2) Availability of formulary pharmaceutical agents--(i) General. 
Subject to paragraph (h)(2)(ii) of this section, formulary 
pharmaceutical agents are available under the Pharmacy Benefits Program 
from all of the points of service identified in paragraph (h)(1) of this 
section.
    (ii) Availability of formulary pharmaceutical agents at military 
treatment facilities. Pharmaceutical agents included on the uniform 
formulary are available through MTFs, consistent with the scope of 
health care services offered in such facilities. The Basic Core 
Formulary (BCF) is a subset of the uniform formulary and is a mandatory 
component of all MTF pharmacy formularies. The BCF contains the minimum 
set of pharmaceutical agents that each MTF pharmacy must have on its 
formulary to support the primary care scope of practice for Primary Care 
Manager enrollment sites. Additions to

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individual MTF formularies are determined by local Pharmacy and 
Therapeutics Committees based on the scope of health care services 
provided at the respective MTFs. All pharmaceutical agents on the local 
MTF formulary must be available to all categories of beneficiaries.
    (3) Availability of non-formulary pharmaceutical agents--(i) 
General. Non-formulary pharmaceutical agents are generally available 
under the pharmacy benefits program from the retail network pharmacies, 
retail non-network pharmacies, and the TRICARE Mail Order Pharmacy 
(TMOP) at the non-formulary cost-share.
    (ii) Availability of non-formulary pharmaceutical agents at military 
treatment facilities. Although not a beneficiary entitlement, non-
formulary pharmaceutical agents may be made available to eligible 
covered beneficiaries through the MTF pharmacies for prescriptions 
approved through the non-formulary special order process that validates 
the medical necessity for use of the non-formulary pharmaceutical agent.
    (iii) Availability of clinically appropriate non-formulary 
pharmaceutical agents to members of the Uniformed Services. The pharmacy 
benefits program is required to assure the availability of clinically 
appropriate pharmaceutical agents to members of the uniformed services, 
including, where appropriate, agents not included on the uniform 
formulary. Clinically appropriate pharmaceutical agents will be made 
available to members of the Uniformed Services, including, where medical 
necessity has been validated, agents not included on the uniform 
formulary. MTFs shall establish procedures to evaluate the clinical 
necessity of prescriptions written for members of the uniformed services 
for pharmaceutical agents not included on the uniform formulary. If it 
is determined that the prescription is clinically necessary, the MTF 
will provide the pharmaceutical agent to the member.
    (iv) Availability of clinically appropriate pharmaceutical agents to 
other eligible beneficiaries at retail pharmacies or the TMOP. Eligible 
beneficiaries will receive non-formulary pharmaceutical agents at the 
formulary cost-share when medical necessity has been established by the 
beneficiary and/or his/her provider. The peer review provisions of Sec. 
199.15 shall apply to the clinical necessity pre-authorization 
determinations. TRICARE may require that the time for review be 
expedited under the pharmacy benefits program.
    (i) Cost-sharing requirements under the pharmacy benefits program--
(1) General. Under 10 U.S.C. 1074g(a)(6), cost-sharing requirements are 
established in this section for the pharmacy benefits program 
independent of those established under other provisions of this Part. 
Cost-shares under this section partially defray government costs of 
administering the pharmacy benefits program when collected by the 
government for prescriptions dispensed through the retail network 
pharmacies or the TRICARE Mail Order Pharmacy. The higher cost-share 
paid for prescriptions dispensed by a non-network retail pharmacy is 
established to encourage the use of the most economical venue to the 
government. Cost-sharing requirements are based on the classification of 
a pharmaceutical agent as generic, formulary, or non-formulary, in 
conjunction with the point of service from which the agent is acquired.
    (2) Cost-sharing amounts. Active duty members of the uniformed 
services do not pay cost-shares. For other categories of beneficiaries, 
cost-sharing amounts are as follows:
    (i) For pharmaceutical agents obtained from a military treatment 
facility, there is no co-payment.
    (ii) For pharmaceutical agents obtained from a retail network 
pharmacy there is a:
    (A) $9.00 co-payment per prescription required for up to a 30-day 
supply of a formularly pharmaceutical agent.
    (B) $3.00 co-payment per prescription for up to a 30-day supply of a 
generic pharmaceutical agent.
    (C) $22.00 co-payment per prescription for up to a 30-day supply of 
a non-formulary pharmaceutical agent.
    (iii) For formulary and generic pharmaceutical agents obtained from 
a retail non-network pharmacy there is a 20 percent or $9.00 co-payment 
(whichever is greater) per prescription for up to a 30-day supply of the 
pharmaceutical agent.

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    (iv) For non-formulary pharmaceutical agents obtained at a retail 
non-network pharmacy there is a 20 percent or $22.00 co-payment 
(whichever is greater) per prescription for up to a 30-day supply of the 
pharmaceutical agent.
    (v) For pharmaceutical agents obtained under the TMOP program there 
is a:
    (A) $9.00 co-payment per prescription for up to a 90-day supply of a 
formulary pharmaceutical agent.
    (B) $3.00 co-payment for up to a 90-day supply of a generic 
pharmaceutical agent.
    (C) $22.00 co-payment for up to a 90-day supply of a non-formulary 
pharmaceutical agent.
    (vi) For TRICARE Prime beneficiaries who obtain prescriptions from 
retail non-network pharmacies, the enrollment year deductible for 
outpatient claims is $300 per individual; $600 per family; and a point 
of service cost-share of 50 percent thereafter applies in lieu of the 20 
percent co-payment.
    (vii) Except as provided in paragraph (h)(2)(viii) of this section, 
for pharmaceutical agents acquired by TRICARE Standard beneficiaries 
from retail non-network pharmacies, beneficiaries are subject to the 
$150.00 per individual or $300.00 maximum per family annual fiscal year 
deductible.
    (viii) Under TRICARE Standard, dependents of members of the 
uniformed services whose pay grade is E-4 or below are subject to the 
$50.00 per indiviudal or $100.00 maximum per family annual fiscal year 
deductible.
    (ix) The TRICARE catastrophic cap limits apply to pharmacy benefits 
program cost-sharing.
    (x) The per prescription co-payments established in this paragraph 
(i)(2) of this section may be adjusted periodically based on experience 
with the uniform formulary, changes in economic circumstances, and other 
appropriate factors. Any such adjustment may be made upon the 
recommendation of the Pharmacy and Therapeutics Committee and approved 
by the Assistant Secretary of Defense (Health Affairs). Any such 
adjusted amount will maintain compliance with the requirements of 10 
U.S.C. 1074g(a)(6).
    (3) Special cost-sharing rule when there is a clinical necessity for 
use of a non-formulary pharmaceutical agent. (i) When there is a 
clinical necessity for the use of a non-formulary pharmaceutical agent 
that is not otherwise excluded as a covered benefit, the pharmaceutical 
agent will be provided at the same co-payment as a formulary 
pharmaceutical agent can be obtained.
    (ii) A clinical necessity for use of a non-formulary pharmaceutical 
agent is established when the beneficiary or their provider submits 
sufficient information to show that one or more of the following 
conditions exist:
    (A) The use of formualry pharmaceutical agents is contraindicated;
    (B) The patient experiences significant adverse effects from 
formulary pharmaceutical agents, or the provider shows that the patient 
is likely to experience significant adverse effects from formulary 
pharmaceutical agents;
    (C) Formulary pharmaceutical agents result in therapeutic failure, 
or the provider shows that the formulary pharmaceutical agent is likely 
to result in therapeutic failure;
    (D) The patient previously responded to a non-formulary 
pharmaceutical agent and changing to a formulary pharmaceutical agent 
would incur unacceptable clinical risk; or
    (E) There is no alternative pharmaceutical agent on the formulary.
    (iii) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent should be provided to TRICARE for 
prescriptions submitted to a retail network pharmacy.
    (iv) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent should be provided as part of the claims 
processes for non-formulary pharmaceutical agents obtained through non-
network points of service, claims as a result of other health insurance, 
or any other situations requiring the submission of a manual claim.
    (v) Information to establish clinical necessity for use of a non-
formulary pharmaceutical agent may be provided with the prescription 
submitted to the TMOP contractor.
    (vi) Information to establish clinical necessity for use of a non-
formulary

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pharmaceutical agent may also be provided at a later date, but no later 
than sixty days from the dispensing date, as an appeal to reduce the 
non-formulary co-payment to the same co-payment as a formulary drug.
    (vii) The process of establishing clinical necessity will not 
unnecessarily delay the dispensing of a prescription. In situations 
where clinical necessity cannot be determined in a timely manner, the 
non-formulary pharmaceutical agent will be dispensed at the non-
formulary co-payment and a refund provided to the beneficiary should 
clinical necessity be established.
    (viii) Peer review and appeal and hearing procedures. All levels of 
peer review, appeals, and grievances established by the Contractor for 
internal review shall be exhausted prior to forwarding to TRICARE 
Management Activity for a formal review. Procedures comparable to those 
established under Sec. Sec. 199.15 and 199.10 of this part shall apply. 
If it is determined that the prescription is clinically necessary, the 
pharmaceutical agent will be provided to the beneficiary at the 
formulary cost-share. TRICARE may require that the time periods for peer 
review or for appeal and hearing be expedited under the pharmacy 
benefits program. For purposes of meeting the amount in dispute 
requirement of Sec. 199.10(a)(7), the relevant amount is the difference 
between the cost shares of a formulary versus non-formulary drug. The 
amount for each of multiple prescriptions involving the same drug to 
treat the same medical condition and filled within a 12-month period may 
be combined to meet the required amount in dispute.
    (j) Use of generic drugs under the pharmacy benefits program. (1) 
The designation of a drug as a generic, for the purpose of applying 
cost-shares at the generic rate, will be determined through the use of 
standard pharmaceutical references as part of commercial best business 
practices. Pharmaceutical agents will be designated as generics when 
listed with an ``A'' rating in the current Approved Drug Products with 
Therapeutic Equivalence Evaluations (Orange Book) published by the Food 
and Drug Administration, or any successor to such reference. Generics 
are multisource products that must contain the same active ingredients, 
are of the same dosage form, route of administration and are identical 
in strength or concentration.
    (2) The pharmacy benefits program generally requires mandatory 
substitution of generic drugs listed with an ``A'' rating in the current 
Approved Drug Products with Therapeutic Equivalence Evaluations (Orange 
Book) published by the FDA and generic equivalents of grandfather or 
Drug Efficacy Study Implementation (DESI) category drugs for brand name 
drugs. In cases in which there is a clinical justification for a brand 
name drug in lieu of a generic equivalent, under the standards and 
procedures of paragraph (h)(3) of this section, the generic substitution 
policy is waived.
    (3) When a blanket purchase agreement, incentive price agreement, 
Government contract, or other circumstances results in a brand 
pharmaceutical agent being the most cost effective agent for purchase by 
the Government, the Pharmacy and Therapeutics Committee may also 
designate that the drug be cost-shared at the generic rate.
    (k) Preauthorization of certain pharmaceutical agents. (1) Selected 
pharmaceutical agents may be subject to prior authorization or 
utilization review requirements to assure medical necessity, clinical 
appropriateness and/or cost effectiveness.
    (2) The Pharmacy and Therapeutics Committee will assess the need to 
prior authorize a given agent by considering the relative clinical and 
cost effectiveness of pharmaceutical agents within a therapeutic class. 
Pharmaceutical agents that require prior authorization will be 
identified by a majority vote of the Pharmacy and Therapeutics 
Committee. The Pharmacy and Therapeutics Committee will establish the 
prior authorization criteria for the pharamaceutical agent.
    (3) Prescriptions for pharmaceutical agents for which prior 
authorization criteria are not met will not be cost-shared under the 
TRICARE pharmacy benefits program.
    (4) The Director, TRICARE Management Activity, may issue policies, 
procedures, instructions, guidelines,

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standards or criteria to implement this paragraph (k).
    (l) TRICARE Senior Pharmacy Program. Section 711 of the Floyd D. 
Spence National Defense Authorization Act for Fiscal Year 2001 (Public 
Law 106-398, 114 Stat. 1654A-175) established the TRICARE Senior 
Pharmacy Program for Medicare eligible beneficiaries effective April 1, 
2001. These beneficiaries are required to meet the eligibility criteria 
as prescribed in Sec. 199.3 of this part. The benefit under the TRICARE 
Senior Pharmacy Program applies to prescription drugs and medicines 
provided on or after April 1, 2001.
    (m) Effect of other health insurance. The double coverage rules of 
Sec. 199.8 of this part are applicable to services provided under the 
pharmacy benefits program. For this purpose, to the extent they provide 
a prescription drug benefit, Medicare supplemental insurance plans or 
Medicare HMO plans are double coverage plans and will be the primary 
payor. Beneficiaries who elect to use this pharmacy benefits shall 
provide DoD with other health insurance information.
    (n) Procedures. The Director, TRICARE Management Activity shall 
establish procedures for the effective operation of the pharmacy 
benefits program. Such procedures may include restrictions of the 
quantity of pharmaceuticals to be included under the benefit, 
encouragement of the use of generic drugs, implementation of quality 
assurance and utilization management activities, and other appropriate 
matters.
    (o) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the 
Department of Defense has determined that in the administration of 10 
U.S.C. chapter 55, preemption of State and local laws relating to health 
insurance, prepaid health plans, or other health care delivery or 
financing methods is necessary to achieve important Federal interests, 
including but not limited to the assurance of uniform national health 
programs for military families and the operation of such programs at the 
lowest possible cost to the Department of Defense, that have a direct 
and substantial effect on the conduct of military affairs and national 
security policy of the United States.
    (2) Based on the determination set forth in paragraph (o)(1) of this 
section, any State or local law relating to health insurance, prepaid 
health plans, or other health care delivery or financing methods is 
preempted and does not apply in connection with TRICARE pharmacy 
contracts. Any such law, or regulation pursuant to such law, is without 
any force or effect, and State or local governments have no legal 
authority to enforce them in relation to the TRICARE pharmacy contracts. 
However, the Department of Defense may by contract establish legal 
obligations on the part of TRICARE contractors to conform with 
requirements similar or identical to requirements of State or local laws 
or regulations.
    (3) The preemption of State and local laws set forth in paragraph 
(o)(1) of this section includes State and local laws imposing premium 
taxes on health or dental insurance carriers or underwriters or other 
plan managers, or similar taxes on such entities. Such laws are laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods, within the meaning of the statutes 
identified in paragraph (o)(1) of this section. Preemption, however, 
does not apply to taxes, fees, or other payments on net income or profit 
realized by such entities in the conduct of business relating to DoD 
pharmacy services contracts, if those taxes, fees or other payments are 
applicable to a broad range of business activity. For purposes of 
assessing the effect of Federal preemption of State and local taxes and 
fees in connection with DoD pharmacy services contracts, interpretations 
shall be consistent with those applicable to the Federal Employees 
Health Benefits Program under 5 U.S.C. 8909(f).
    (p) General fraud, abuse, and conflict of interest requirements 
under TRICARE pharmacy benefits program. All fraud, abuse, and conflict 
of interest requirements for the basic CHAMPUS program, as set forth in 
this part 199 (see applicable provisions of Sec. 199.9 of this part) 
are applicable to the TRICARE pharmacy benefits program. Some

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methods and procedures for implementing and enforcing these requirements 
may differ from the methods and procedures followed under the basic 
CHAMPUS program.

[69 FR 17048, Apr. 1, 2004]



Sec. 199.22  TRICARE Retiree Dental Program (TRDP).

    (a) Purpose. The TRDP is a premium based indemnity dental insurance 
coverage program that will be available to retired members of the 
Uniformed Services, their dependents, and certain other beneficiaries, 
as specified in paragraph (d) of this section. The TRDP is authorized by 
10 U.S.C. 1076c.
    (b) General provisions. (1) At a minimum, benefits are the 
diagnostic services, preventive services, basic restorative services 
(including endodontics), oral surgery services, and emergency services 
specified in paragraph (f)(1) of this section. Additional services 
comparable to those contained in paragraph (e)(2) of Sec. 199.13 may be 
covered pursuant to benefit policy decisions made by the Director, 
OCHAMPUS, or designee.
    (2) Premium costs for this coverage will be paid by the enrollee.
    (3) The program is applicable to authorized providers in the 50 
United States and the District of Columbia, Canada, Puerto Rico, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the U.S. Virgin Islands.
    (4) Except as otherwise provided in this section or by the Assistant 
Secretary of Defense (Human Affairs) or designee, the TRDP is 
administered in a manner similar to the Active Duty Dependents Dental 
Plan under Sec. 199.13 of this part.
    (5) The TRDP shall be administered through a contract.
    (c) Definitions. Except as may be specifically provided in this 
section, to the extent terms defined in Sec. Sec. 199.2 and 199.13(b) 
of this part are relevant to the administration of the TRICARE Retiree 
Dental Program, the definitions contained in Sec. Sec. 199.2 and 
199.13(b) of this part shall apply to the TRDP as they do to CHAMPUS and 
the TRICARE Active Duty Dependents Dental Plan.
    (d) Eligibility and enrollment.--(1) Eligibility. Enrollment in the 
TRICARE Retiree Dental Program is open to:
    (i) Members of the Uniformed Services who are entitled to retired 
pay, or former members of the armed forces who are Medal of Honor 
recipients and who are not otherwise entitled to dental benefits;
    (ii) Members of the Retired Reserve under the age of 60;
    (iii) Eligible dependents of a member described in paragraph 
(d)(1)(i) or paragraph (d)(1)(ii) of this section who are covered by the 
enrollment of the member;
    (iv) Eligible dependents of a member described in paragraph 
(d)(1)(i) or paragraph (d)(1)(ii) of this section when the member is not 
enrolled in the program and the member meets at least one of the 
conditions in paragraphs (d)(1)(iv)(A) through (C) of this section. 
Already enrolled members must satisfy any remaining enrollment 
commitment prior to enrollment of dependents becoming effective under 
this paragraph, at which time the dependent-only enrollment will 
continue on a voluntary, month-to-month basis as specified in paragraph 
(d)(4) of this section. Members must provide documentation to the TRDP 
contractor giving evidence of compliance with paragraphs (d)(1)(iv)(A), 
(B), or (C) of this section at the time of application for enrollment of 
their dependents under this paragraph.
    (A) The member is enrolled under Section 1705 of Title 38, United 
States Code, to receive ongoing, comprehensive dental care from the 
Department of Veterans Affairs pursuant to Section 1712 of Title 38, 
United States Code, and 38 CFR 17.93, 17.161, or 17.166. Authorization 
of such dental care must be confirmed in writing by the Department of 
Veterans Affairs.
    (B) The member is enrolled in a dental plan that is available to the 
member as a result of employment of the member that is separate from the 
Uniformed Service of the member, and the dental plan is not available to 
dependents of the member as a result of such separate employment by the 
member. Enrollment in this dental plan and the exclusion of dependents 
from enrollment in the plan must be confirmed by

[[Page 338]]

documentation from the member's employer or the dental plan's 
administrator.
    (C) The member is prevented by a current and enduring medical or 
dental condition from being able to obtain benefits under the TRDP. The 
specific medical or dental condition and reason for the inability to use 
the program's benefits over time, if not apparent based on the 
condition, must be documented by the member's physician or dentist.
    (v) The unremarried surviving spouse and eligible child dependents 
of a deceased member who died while in status described in paragraph 
(d)(1)(i) or paragraph (d)(1)(ii) of this section; the unremarried 
surviving spouse and eligible child dependents who receive a surviving 
spouse annuity; or the unremarried surviving spouse and eligible child 
dependents of a deceased member who died while on active duty for a 
period of more than 30 days and whose eligible dependents are not 
eligible or no longer eligible for the Active Duty Dependents Dental 
Plan.
    Note to paragraphs (d)(1)(iii), (d)(1)(iv), and (d)(1)(v): Eligible 
dependents of Medal of Honor recipients are described inSec. 
199.3(b)(2)(i) (except for former spouses) andSec. 199.3(b)(2)(ii) 
(except for a child placed in legal custody of a Medal of Honor 
recipient under Sec. 199.3(b)(2)(ii)(H)(4)).
    (2) Notification of eligibility. The contractor will notify persons 
eligible to receive dental benefits under the TRICARE Retiree Dental 
Program.
    (3) Election of coverage. In order to initiate dental coverage, 
election to enroll must be made by the member or eligible dependent. 
Enrollment in the TRICARE Retiree Dental Program is voluntary and will 
be accomplished by submission of an application to the TRDP contractor.
    (4) Enrollment periods--(i) Enrollment period for basic benefits. 
The initial enrollment for the basic dental benefits described in 
paragraph (f)(1) of this section shall be for a period of 24 months 
followed by month-to-month enrollment as long as the enrollee remains 
eligible and chooses to continue enrollment. An enrollee's disenrollment 
from the TRDP at any time for any reason, including termination for 
failure to pay premiums, is subject to a lockout period of 12 months. 
After any lockout period, eligible individuals may elect to reenroll and 
are subject to a new initial enrollment period. The enrollment periods 
and conditions stipulated in this paragraph apply only to the basic 
benefit coverage described in paragraph (f)(1) of this section. 
Effective with the implementation of an enhanced benefit program, new 
enrollments for basic coverage will cease. Enrollees in the basic 
program at that time may continue their enrollment for basic coverage, 
subject to the applicable provisions of this section, as long as the 
contract administering that coverage is in effect.
    (ii) Enrollment period for enhanced benefits. The initial enrollment 
period for enhanced benefit coverage described in paragraph (f)(2) of 
this section shall be established by the Director, OCHAMPUS, or 
designee, when such coverage is offered, to be a period of not less than 
12 months and not more than 24 months. The initial enrollment period 
shall be followed by renewal periods of up to 12 months as long as the 
enrollee chooses to continue enrollment and remains eligible. An 
enrollee's disenrollment from the TRDP during an enrollment period for 
any reason, including termination for failure to pay premiums, is 
subject to a lockout period of 12 months. This lockout provision does 
not apply to disenrollment during an enrollment grace period as defined 
in paragraph (d)(5)(ii) of this section or following completion of an 
initial or renewal enrollment period. Eligible individuals who elect to 
reenroll following a lockout period or a disenrollment after completion 
of an enrollment period are subject to a new initial enrollment period.
    (5) Termination of coverage--(i) Involuntary termination. TRDP 
coverage is terminated when the member's entitlement to retired pay is 
terminated, the member's status as a member of the Retired Reserve is 
terminated, a dependent child loses eligible child dependent status, or 
a surviving spouse remarries.
    (ii) Voluntary termination. Regardless of the reason, TRDP coverage 
shall be canceled, or otherwise terminated, upon written request from an 
enrollee if the request is received by the TRDP

[[Page 339]]

contractor within thirty (30) calendar days following the enrollment 
effective date and there has been no use of TRDP benefits by the 
enrolled member, enrolled spouse, or enrolled dependents during that 
period. If such is the case, the enrollment is voided and all premium 
payments are refunded. However, use of benefits during this 30-day 
enrollment grace period constitutes acceptance by the enrollee of the 
enrollment and the enrollment period commitment. In this case, a request 
for voluntary disenrollment before the end of the initial enrollment 
period will not be honored, and premiums will not be refunded.
    (6) Continuation of dependents' enrollment upon death of enrollee. 
Coverage of a dependent in the TRDP under an enrollment of a member or 
surviving spouse who dies during the period of enrollment shall continue 
until the end of that period and may be renewed by (or for) the 
dependent, so long as the premium paid is sufficient to cover 
continuation of the dependent's enrollment. Coverage may be terminated 
when the premiums paid are no longer sufficient to cover continuation of 
the enrollment.
    (e) Premium payments. Persons enrolled in the dental plan will be 
responsible for paying the full cost of the premiums in order to obtain 
the dental insurance.
    (1) Premium payment method. The premium payment may be collected 
pursuant to procedures established by the Assistant Secretary of Defense 
(Health Affairs) or designee.
    (2) Effects of failure to make premium payments. Failure to make 
monthly renewal premium payments will result in the enrollee's 
disenrollment from the TRDP and subject to a lock-out period of 12 
months. Following this period of time, persons eligible will be able to 
reenroll if they so choose.
    (3) Member's payment of premiums. The cost of the TRDP monthly 
premium will be paid by the enrollee. Interested beneficiaries may 
contact the dental contractor-insurer to obtain the enrollee premium 
cost.
    (f) Plan benefits. The Director, OCHAMPUS, or designee, may modify 
the services covered by the TRDP to the extent determined appropriate 
based on developments in common dental care practices and standard 
dental programs. In addition, the Director, OCHAMPUS, or designee, may 
establish such exclusions and limitations as are consistent with those 
established by dental insurance and prepayment plans to control 
utilization and quality of care for the services and items covered by 
the TRDP.
    (1) Basic benefits. The minimum TRDP benefit is basic dental care to 
include diagnostic services, preventive services, basic restorative 
services (including endodontics), oral surgery services, and emergency 
services. The following is the minimum TRDP covered dental benefit 
(using the American Dental Association's The Council on Dental Care 
Program's Code on Dental Procedures and Nomenclature):
    (i) Diagnostic Periodic oral evaluation (00120); Comprehensive oral 
evaluation (limited to one exam per year in the same dental office) 
(00150), Intraoral-complete series (including bitewings) (00210); 
Intraoral-periapical-first film (00220); Intraoral-periapical-each 
additional film (00230); Intraoral-occlusal film (00240); Bitewings-
single film (00270); Bitewings-two films (00272); Bitewings-four films 
(00274); Panoramic film (00330); Caries susceptibility tests, by report 
(00425); Pulp vitality tests (00460).
    (ii) Preventive: Prophaylaxis-adult (limit-once per year) (01110); 
Prophylaxis-child (01120); Topical application of fluoride (excluding 
prophylaxis)-child (01203); Topical application of fluoride (excluding 
prophylaxis)-adult, by report, once per year (01204); Sealant-per tooth 
(01351); Space maintainer-fixed-unilateral (01510); Space maintainer-
fixed-bilateral (01515); Space maintainer-removable-unilateral (01520); 
Space maintainer-removable-bilateral (01525); Recementation of space 
maintainer (01550).
    (iii) Restorative: Amalgam-one surface, primary (02110); Amalgam-two 
surfaces, primary (02120); Amalgam-three surfaces, primary (02130); 
Amalgam-four or more surfaces, primary (02131); Amalgam-one surface, 
permanent (02140); Amalgam-two surfaces, permanent (02150); Amalgam-
three surfaces, permanent (02160); Amalgam-four or more surfaces, 
permanent (02161);

[[Page 340]]

Resin-one surface, anterior (02330); Resin-two surfaces, anterior 
(02331); Resin-three surfaces, anterior (02332); Resin-four or more 
surfaces or involving incisal angle (anterior) (02335); Recement inlay 
(02910); Recement crown (02920); Prefabricated stainless steel crown-
primary tooth (02930); Prefabricated stainless crown-permanent tooth 
(02931); Prefabricated resin crown (02932); Prefabricated stainless 
steel crown with resin window (02933); Pin retention-per tooth, in 
addition to restoration (02951); Temporary crown (fractured tooth) 
(02970).
    (iv) Endodontic: Pulp cap-indirect (excluding final restoration) 
(03120); Therapeutic pulpotomy (excluding final restoration) (03220); 
Pulpal therapy (resorbable filling)-anterior, primary tooth (excluded 
final restoration) (03230); Pulpal therapy (resorbable filling)-
posterior, primary tooth (excluded final restoration) (03240); Anterior 
root canal (excluding final restoration) (03310); Bicuspid root canal 
(excluding final restoration) (03320); Molar root canal (excluding final 
restoration) (03330); Retreatment-anterior, by report (03346); 
Retreatment-bicuspid, by report (03347); Retreatment-molar, by report 
(03348); Apexification/recalcification-initial visit (apical closure/
calcific repair of perforations, root resorption, etc.) (03351); 
Apexification/recalcification-interim medication replacement (apical 
closure/calcific repair of perforations, root resorption, etc.) (03352); 
Apexification/recalcification-final visit (includes completed root canal 
therapy-apical closure/calcific repair of perforations, root resorption, 
etc.) (03353); Apicoectomy/Periradicular surgery-anterior (03410); 
Apicoectomy/Periradicular surgery-bicuspid (first root) (03421); 
Apicoectomy/Periradicular surgery-molar (first root) (03425); 
Apicoectomy/Periradicular surgery (each additional root) (03426); 
Retrograde filling-per root (03430); Root amputation-per root (03450); 
Hemisection (including any root removal), not including root canal 
therapy (03920).
    (v) Periodontic: Gingivectomy or gingivoplasty-per quadrant (04210); 
Gingivectomy or gingivoplasty-per tooth (04211); Gingival curettage, 
surgical, per quadrant, by report (04220); Gingival flap procedure, 
including root planing-per quadrant (04240); Mucogingival surgery-per 
quadrant (04250); Osseous surgery (including flap entry and closure)-per 
quadrant (04260); Bone replacement graft-single site (including flap 
entry and closure) (04263); Bone replacement graft-multiple sites 
(including flap entry and closure) (04264); Guided tissue regeneration--
resorbable barrier (04266); Guided tissue regeneration--nonresorbable 
barrier (04267); Pedicle soft tissue graft procedure (04270); Free soft 
tissue graft procedure (including donor site) (04271); Periodontal 
scaling and root planing-per quadrant (04341); Periodontal maintenance 
procedures (following active therapy) (04910); Unscheduled dressing 
change (by someone other than treating dentist) (04920).
    (vi) Oral Surgery: Single tooth (07110); Each additional tooth 
(07120); Root removal-exposed roots (07130) Surgical removal or erupted 
tooth requiring elevation of mucoperiosteal flap and removal of bone 
and/or section of tooth (07210); Removal of impacted tooth-soft tissue 
(07220); Removal of impacted tooth-partially bony (07230); Removal of 
impacted tooth-completely bony (07240); Surgical removal of residual 
tooth roots (cutting procudure) (07250); Oral antral fistula closure 
(07260); Tooth reimplantation and/or stabilization of accidentially 
evulsed or displaced tooth and/or alveolus (07270); Surgical exposure of 
impacted or unerupted tooth to aid eruption (07281); Biopsy of oral 
tissue-hard (07285); Biopsy of oral tissue-soft (07286); Surgical 
repositioning of teeth (074290); Alveoloplasty in conjunction with 
extractions-per quadrant (07310); Suture of recent small wounds up to 5 
cm (07910); Complicated suture-up to 5 cm (07911); Complicated suture-
greater than 5 cm (07912); Excision of pericoronal gingiva (07971).
    (vii) Emergency: Limited oral evaluation--problem focused (00140); 
Palliative (emergency) treatment of dental pain-minor procedures 
(09110).
    (viii) Drugs: Therapeutic drug injection, by report (09610); Other 
drugs and/or medications, by report (09630).
    (ix) Postsurgical: Treatment of complications (post-surgical) 
unusual circumstances, by report (09930).

[[Page 341]]

    (2) Enhanced benefits. In addition to the minimum TRDP services in 
paragraph (f)(1) of this section, other services that are comparable to 
those contained in paragraph (e)(2) of Sec. 199.13 may be covered 
pursuant to TRDP benefit policy decisions made by the Director, 
OCHAMPUS, or designee. In general, these include additional diagnostic 
and preventive services, major restorative services, prosthodontics 
(removable and fixed), additional oral surgery services, orthodontics, 
and additional adjunctive general services (including general anesthesia 
and intravenous sedation). Enrollees in the basis plan will be given an 
enrollment option at the time the enhanced plan is implemented.
    (3) Alternative course of treatment policy. The Director, OCHAMPUS, 
or designee, may establish, in accordance with generally accepted dental 
benefit practices, an alternative course of treatment policy which 
provides reimbursement in instances where the dentist and TRDP enrollee 
select a more expensive service, procedure, or course of treatment than 
is customarily provided. The alternative course of treatment policy must 
meet the following conditions:
    (i) The service, procedure, or course of treatment must be 
consistent with sound professional standards of generally accepted 
dental practice for the dental condition concerned.
    (ii) The service, procedure, or course of treatment must be a 
generally accepted alternative for a service or procedure covered by the 
TRDP for the dental condition.
    (iii) Payment for the alternative service or procedure may not 
exceed the lower of the prevailing limits for the alternative procedure, 
the prevailing limits or dental plan contractor's scheduled allowance 
for the otherwise authorized benefit procedure for which the alternative 
is substituted, or the actual charge for the alternative procedure.
    (g) Maximum coverage amounts. Each enrollee is subject to an annual 
maximum coverage amount for non-orthodontic dental benefits and, if an 
orthodontic benefit is offered, a lifetime maximum coverage amount for 
orthodontics as established by the Director, OCHAMPUS, or designee.
    (h) Annual notification of rates. TRDP premiums will be determined 
as part of the competitive contracting process. Information on the 
premium rates will be widely distributed.
    (i) Authorized providers. The TRDP enrollee may seek covered 
services from any provider who is fully licensed and approved to provide 
dental care in the state where the provider is located.
    (j) Benefit payment. Enrollees are not required to utilize the 
special network of dental providers established by the TRDP contractor. 
For enrollees who do use these network providers, however, providers 
shall not balance bill any amount in excess of the maximum payment 
allowable by the TRDP. Enrollees using non-network providers may balance 
billed amounts in excess of allowable charges. The maximum payment 
allowable by the TRDP (minus the appropriate cost-share) will be the 
lesser of:
    (1) Billed charges; or
    (2) Usual, Customary and Reasonable rates, in which the customary 
rate is calculated at the 50th percentile of billed charges in that 
geographic area, as measured in an undiscounted charge profile in 1995 
or later for that geographic area (as defined by three-digit zip code).
    (k) Appeal and hearing procedures. All levels of appeals and 
grievances established by the Contractor for internal review shall be 
exhausted prior to forwarding to OCHAMPUS for a final review. Procedures 
comparable to those established under Sec. 199.13(h) of this part shall 
apply.
    (l) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the 
Department of Defense has determined that in the administration of 
chapter 55 of title 10, U.S. Code, preemption of State and local laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods is necessary to achieve important Federal 
interests, including but not limited to the assurance of uniform 
national health programs for military families and the operation of such 
programs at the lowest possible cost to the Department of Defense, that 
have a direct and substantial effect on the

[[Page 342]]

conduct of military affairs and national security policy of the United 
States. This determination is applicable to the dental services 
contracts that implement this section.
    (2) Based on the determination set forth in paragraph (l)(1) of this 
section, any State or local law or regulation pertaining to health or 
dental insurance, prepaid health or dental plans, or other health or 
dental care delivery, administration, and financing methods is preempted 
and does not apply in connection with the TRICARE Retiree Dental Program 
contract. Any such law, or regulation pursuant to such law, is without 
any force or effect, and State or local governments have no legal 
authority to enforce them in relation to the TRICARE Retiree Dental 
Program contract. (However, the Department of Defense may, by contract, 
establish legal obligations on the part of the TRICARE Retiree Dental 
Program contractor to conform with requirements similar to or identical 
to requirements of State or local laws or regulations).
    (3) The preemption of State and local laws set forth in paragraph 
(l)(2) of this section includes State and local laws imposing premium 
taxes on health or dental insurance carriers or underwriters or other 
plan managers, or similar taxes on such entities. Such laws are laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods, within the meaning of section 1103. 
Preemption, however, does not apply to taxes, fees, or other payments on 
net income or profit realized by such entities in the conduct of 
business relating to DoD health services contracts, if those taxes, fees 
or other payments are applicable to a broad range of business activity. 
For the purposes of assessing the effect of Federal preemption of State 
and local taxes and fees in connection with DoD health and dental 
services contracts, interpretations shall be consistent with those 
applicable to the Federal Employees Health Benefits Program under 5 
U.S.C. 8909(f).
    (m) Administration. The Assistant Secretary of Defense (Health 
Affairs) or designee may establish other rules and procedures for the 
administration of the TRICARE Retiree Dental Program.

[62 FR 66993, Dec. 23, 1997, as amended at 65 FR 48913, Aug. 10, 2000; 
65 FR 49492, Aug. 14, 2000; 66 FR 9658, Feb. 9, 2001; 67 FR 4354, Jan. 
30, 2002; 67 FR 15725, Apr. 3, 2002]



Sec. 199.23  Special Supplemental Food Program.

    (a) General provisions. This section prescribes guidelines and 
policies for the delivery and administration of the Special Supplemental 
Food Program for Women, Infants, and Children Overseas (WIC Overseas 
Program). The purpose of the WIC Overseas Program is to provide 
supplemental foods and nutrition education, at no cost, to eligible 
persons and to serve as an adjunct to good health care during critical 
times of growth and development, in order to prevent the occurrence of 
health problems, including drug and other substance abuse, and to 
improve the health status of program participants. The benefit is 
similar to the benefit provided under the U.S. Department of Agriculture 
(USDA) administered Women, Infants, and Children (WIC) Program.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to sec. 199.2. The following definitions apply 
only to this section:
    (1) Applicant. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are applying to receive WIC Overseas 
benefits, and the breastfed infants of applicant breastfeeding women. 
This term also includes individuals who are currently participating in 
the Program but are re-applying because their certification is about to 
expire.
    (2) Breastfeeding women. Women up to 1-year postpartum who are 
breastfeeding their infants. Their eligibility will end on the last day 
of the month of their infant's first birthday.
    (3) Certification. The implementation of criteria and procedures to 
assess and document each applicant's eligibility for the Program.
    (4) Children. Persons who have had their first birthday but have not 
yet attained their fifth birthday. Their eligibility will end on the 
last day of the month of their fifth birthday.

[[Page 343]]

    (5) Competent Professional Authority (CPA). An individual on the 
staff of the WIC Overseas office authorized to determine nutritional 
risk, prescribe supplemental foods, and design nutrition education 
programs. The following are authorized to serve as a competent 
professional authority: physicians, nutritionists, registered nurses, 
and dieticians may serve as a competent professional authority. 
Additionally, a CPA may be other persons designated by the regional 
program manager who meet the definition of CPA prescribed by the USDA as 
being professionally competent to evaluate nutritional risk. The 
definition also applies to an individual who is not on the staff of the 
WIC Overseas office but who is qualified to provide data upon which 
nutritional risk determinations are made by a competent professional 
authority on the staff of the local WIC Overseas office.
    (6) Contract brand. The brand of a particular food item that has 
been competitively selected by the DoD to be the exclusive supplier of 
that type of food item to the program.
    (7) Date-to-use. The date by which the drafts must be used to 
purchase food items.
    (8) Department. The Department of Defense (DoD), unless otherwise 
noted.
    (9) Dependent. (i) A spouse, or (ii) An unmarried child who is:
    (A) Under 21 years of age; or
    (B) Incapable of self-support because of mental or physical 
incapacity and is in fact dependent on the member for more than \1/2\ of 
the child's support; or
    (C) Is under 23 years of age, is enrolled in a full-time course of 
study in an institution of higher education and is in fact dependent on 
the member for more than one-half of the child's support.
    (10) Drafts. Paper food instruments, similar to vouchers, issued in 
the WIC Overseas offices to program participants. Participants may 
redeem their drafts at participating commissaries and NEXMARTs for the 
types and quantities of foods specified on the face of the draft.
    (11) Economic unit. All individuals contributing to or subsidizing 
the income of a household, whether they physically reside in that 
household or not.
    (12) Eligible civilian. An eligible civilian is a person who is not 
a member of the armed forces and who is:
    (i) A dependent of a member of the armed forces residing with the 
member outside the United States, whether or not that dependent is 
command sponsored, or
    (ii) An employee of a military department who is a national of the 
United States and is residing outside the United States in connection 
with such individual's employment or a dependent of such individual 
residing with the employee outside the United States; or
    (iii) An employee of a Department of Defense contractor who is a 
national of the United States and is residing outside the United States 
in connection with such individual's employment or a dependent of such 
individual residing with the employee outside the United States.
    (13) Family. A group of related or non-related individuals who are 
one economic unit.
    (14) Hematological test. A test of an applicant's or participant's 
blood as described in 7 CFR part 246.7(e).
    (15) Income guidelines. Income poverty guidelines published by the 
U.S. DHHS. These guidelines are adjusted annually by the Department of 
Health and Human Services (DHHS), with each annual adjustment effective 
July 1 of each year. For purposes of WIC Overseas Program income 
eligibility determinations, income guidelines shall mean the income 
guidelines published by the DHHS pertaining to the State of Alaska.
    (16) Infants. Persons under 1 year of age.
    (17) National of the U.S. A person who:
    (i) Is a citizen of the U.S.; or
    (ii) Is not a citizen of the United States, but who owes permanent 
allegiance to the United States, as determined in accordance with the 
Immigration and Nationality Act.
    (18) NEXMART. Navy Exchange Market.
    (19) Nutrition education. Individual or group sessions and the 
provision of materials designed to improve health status, achieve 
positive change in dietary

[[Page 344]]

habits, and emphasize relationships between nutrition and health, all in 
keeping with the individual's personal, cultural, and socioeconomic 
preferences.
    (20) Nutritional risk.
    (i) The presence of detrimental or abnormal nutritional conditions 
detectable by biochemical, physical, developmental or anthropometric 
data, or
    (ii) Other documented nutritionally related medical conditions, or
    (iii) Documented evidence of dietary deficiencies that impair or 
endanger health, or
    (iv) Conditions that directly affect the nutritional health of a 
person, such as alcoholism or drug abuse, or
    (v) Conditions that predispose persons to inadequate nutritional 
patterns, habits of poor nutritional choices or nutritionally related 
medical conditions.
    (21) Participants. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are receiving supplemental foods or 
food instruments under the WIC Overseas Program, and the breastfed 
infants of participant breastfeeding women.
    (22) Postpartum Women. Women up to 6 months after the end of their 
pregnancy. Their eligibility will end on the last day of the sixth month 
after their delivery.
    (23) Pregnant Women. Women determined to have one or more embryos or 
fetuses in utero. Pregnant women are eligible to receive WIC benefits 
through 6 weeks postpartum, at which time they reapply for the program 
as postpartum or breastfeeding women.
    (24) Rebate. The amount of money refunded under cost containment 
procedures to the Department from the manufacturer of a contract brand 
food item.
    (25) Regional Lead Agent. The designated major military medical 
center that acts as the regional lead agent, having tri-service 
responsibility for the development and execution of a single, integrated 
health care network.
    (26) Supplemental foods. Foods containing nutrients determined by 
nutritional research to be lacking in the diets of certain pregnant, 
breastfeeding, and postpartum women, infants, and children. WIC Overseas 
may substitute different foods providing the nutritional equivalent of 
foods prescribed by Domestic WIC programs, as required by 10 U.S.C. 
1060a(c)(1)(B).
    (27) Verification. Verification of drafts is a review before payment 
out of Defense Health Program funds to determine whether the commissary 
or NEXMART complied with applicable date-to-use, food specification, and 
other redemption criteria.
    (c) Certification of eligibility. (1) to the extent practicable, 
participants shall be certified as eligible to receive Program benefits 
according to income and nutritional risk certification guidelines 
contained in regulations published by the USDA pertaining to the Women, 
Infants, and Children program required under 7 CFR 246.7(d)(2)(iv)(B). 
Applicants must meet the following eligibility criteria:
    (i) Meet one of the participant type requirements: be a member of 
the armed forces on duty overseas; a family member/dependent of a member 
of the armed forces on duty overseas; a U.S. national employee of a 
military department serving overseas; a family member of a U.S. national 
employee of a DoD contractor serving overseas; a family member of a U.S. 
national employee of a DoD contractor serving overseas;
    (ii) Reside in the geographic area served by the WIC Overseas 
office;
    (iii) Meet the income criteria specified in this section; and
    (iv) Meet the nutrition risk criteria specified in this section.
    (2) In terms of income eligibility, the following apply:
    (i) The Department of Defense shall use the Alaska income poverty 
guidelines published by the DHHS for making determinations regarding 
income eligibility for the Program.
    (ii) Program income eligibility guidelines shall be adjusted 
annually to conform to annual adjustments made by the DHHS.
    (iii) For income eligibility, the Program may consider the income of 
the family during the past 12 months and the family's current rate of 
income to determine which indicator accurately reflects the family's 
status.
    (iv) A pregnant woman who is ineligible for participation in the 
Program

[[Page 345]]

because she does not meet income criteria shall be deemed eligible if 
the criteria would be met by increasing the number of individuals in her 
family (economic unit) by the number of children in utero.
    (v) The Program shall define income according to USDA regulations 
with regard to the USDA-administered WIC Program. In particular--
    (A) A basic allowance for housing is excluded from income as 
required by section 674 of the National Defense Authorization Act for 
Fiscal Year 2000.
    (B) The value of in-kind housing benefits is excluded from income as 
required under USDA regulations.
    (C) Cost of living allowances for duty outside the continental U.S. 
(OCONUS) is excluded from income as required under 7 CFR 
246.7(d)(2)(iv)(A)(2).
    (D) Public assistance and welfare payments are included in income.
    (3) Participants must be found to be at nutritional risk to be 
eligible for program benefits.
    (i) A Competent Professional Authority (CPA) shall determine if an 
applicant is at nutritional risk.
    (ii) At the request of the program, applicants shall provide, 
according to schedules set by the USDA in 7 CFR 246.7(e) (unless deemed 
impracticable), nutritional risk data as a condition of certification in 
the Program. Such data includes:
    (A) Anthropometric measurements,
    (B) The results of hematological tests,
    (C) Physical examination,
    (D) Dietary information, or
    (E) Developmental testing
    (iii) A pregnant woman who meets all other eligibility criteria and 
for whom a nutritional risk assessment cannot immediately be completed 
will be considered presumptively eligible to participate in the Program 
for a period up to 60 days.
    (iv) Infants under 6 months of age may be deemed to be at 
nutritional risk if the infant's mother was a Program participant during 
pregnancy or if medical records document that the mother was at 
nutritional risk during pregnancy.
    (v) Unless otherwise specified herein or in 7 CFR 246.7(e), required 
nutritional risk data shall be provided to, or obtained by, the WIC 
Overseas Program office within 90 days of enrollment.
    (4) In the event that it is impracticable for the WIC Overseas 
Program to adhere to the income and nutritional risk eligibility 
guidelines contained in USDA regulations, the Director, TRICARE 
Management Activity (TMA) may waive the Department's use of USDA WIC 
Program eligibility criteria by determining that it is impracticable to 
use these standards to certify participants in the WIC Overseas Program.
    (i) Such determination shall consider relevant practical, 
administrative, national security, financial factors and existing 
Department policies and their application to the population served by 
the WIC Overseas Program.
    (ii) Absent a written finding of impracticability described in 
section 199.23(c)(4), the eligibility criteria for the WIC program, 
contained in USDA regulations shall apply.
    (5) An applicant for the WIC Overseas Program who presents a valid 
WIC Program Verification of Certification card, which is issued to 
participants in the domestic WIC Program when they intend to move, shall 
be considered eligible for participation in the WIC Overseas Program for 
the duration of the individual's current domestic WIC certification 
period, as long as he/she is an eligible service/family member or 
eligible civilian/family member.
    (d) Program benefits. (1) Drafts. WIC participants shall be issued 
drafts that may be redeemed for supplemental food prescribed under the 
program.
    (i) Drafts shall at a minimum list the food items to be redeemed and 
the date-to-use.
    (ii) Food items listed on the draft must be approved for use under 
the Program.
    (iii) Drafts generally shall allow for a three-month supply of food 
items for each participant, unless the participant's nutritional status 
necessitates more frequent contacts with the WIC Overseas office.
    (iv) Participating commissaries and NEXMARTS shall accept the drafts 
in exchange for approved food items.
    (v) Commissary and NEXMART personnel shall be trained on 
verification and processing of drafts.

[[Page 346]]

    (vi) Program guidelines shall provide for training of new 
participants in how to redeem drafts.
    (2) Supplemental Food. Participants shall redeem drafts for 
appropriate food packages at intervals determined in accordance with the 
USDA regulations.
    (i) The Director, TMA shall identify to the Defense Commissary 
Agency (DeCA) and NEXCOM a list of food items approved for the WIC 
Overseas Program. This list shall be developed in consultation with the 
USDA and shall include information regarding the appropriate package 
and/or container sizes and quantities available for participants, as 
well as the frequency with which food items can be acquired. Additions 
and/or deletions of food items from this list shall be communicated to 
the commissaries and NEXMARTS on an ongoing basis.
    (ii) A CPA shall prescribe appropriate foods from among the approved 
list to be included in food packages.
    (iii) A CPA shall coordinate documentation of medical need when such 
documentation is a prerequisite for prescribing certain food items.
    (iv) The Director, TMA may authorize changes regarding the 
supplemental foods to be made available in the WIC Overseas Program when 
local conditions preclude strict compliance or when such compliance is 
impracticable.
    (3) Nutrition Education. Nutrition education shall be provided to 
all participants at intervals prescribed in USDA regulations at 7 CFR 
Part 246.11.
    (i) The WIC Overseas nutrition education program shall be locally 
overseen by a CPA based on guidance and materials provided by TMA.
    (ii) Nutrition education and its means of delivery be tailored to 
the greatest extent practicable to the specific nutritional, cultural, 
practical, and other needs of the participant. Participant profiles 
created during certification may be used in designing appropriate 
nutrition education. A CPA may develop individual care plans, as 
necessary, consistent with USDA regulations.
    (iii) Nutrition education shall consist of sessions wherein 
individual participants or groups of participants meet with a CPA in an 
interactive setting such that participants can ask, and the CPA can 
answer, questions related to nutrition practices. In addition, nutrition 
education shall utilize prepared educational materials and/or Internet 
sites. Both the sessions and the information materials shall be designed 
to improve health status, achieve positive change in dietary habits, and 
emphasize relationships between nutrition and health. Individual and 
group sessions can be accomplished through, among other things, face-to-
face meetings, remote tele-videoconferencing, real-time computer-based 
distance learning, or other means.
    (iv) Nutrition education services shall generally be provided to 
participants twice during each 6-month certification period, unless a 
different schedule is specified in USDA regulations.
    (v) The nutrition education program shall promote breastfeeding as 
the optimal method of infant nutrition, encourage pregnant participants 
to breastfeed unless contraindicated for health reasons, and educate all 
participating women about the harmful effects of substance abuse.
    (vi) Individual participants shall not be denied supplemental food 
due to the failure to attend scheduled nutrition education sessions.
    (e) Financial management. The Department shall establish procedures 
to provide for the verification of drafts prior to payment.
    (i) Verification may utilize sampling techniques.
    (ii) Payment of drafts shall be made out of Defense Health Program 
funds.
    (f) Rebate agreements. (1) DoD is authorized to enter into an 
agreement with a manufacturer of a particular brand of a food item that 
provides for the exclusive supply to the program of the same or similar 
types of food items by that manufacturer.
    (i) The agreement shall identify a contract brand of food item.
    (ii) Under the agreement, the manufacturer shall rebate to the 
Department an agreed portion of the amounts paid by DoD for the 
procurement of the contract brand.

[[Page 347]]

    (2) The DoD shall use competitive procedures under title 10, chapter 
137 to select the contract brand.
    (3) Amounts rebated shall be credited to the appropriation available 
for carrying out the program and shall be applied against expenditures 
for the program in the same period as the other sums in the 
appropriation.
    (g) Administrative appeals and civil rights. (1) Applicants who are 
denied certification or participants that are denied recertification 
shall be provided with a notice of ineligibility. The notice shall 
include information on the applicant's right to appeal the determination 
and instructions on doing so.
    (2) Benefits shall not be provided while an appeal is pending when 
an applicant is denied benefits, a participant's certification has 
expired or a participant becomes categorically ineligible.
    (3) A request for appeal shall be submitted in writing within five 
working days. If the decision is an adverse one it shall include notice 
to the applicant of his further appeal rights as reflected in (iii) 
below, and that he/she has five working days to effect any such appeal.
    (4) Appeal reviews shall be conducted in the first instance by the 
CPA or team leader in charge of the local WIC Overseas office.
    (i) Written notice of a decision shall be provided to the applicant 
within five working days.
    (ii) If the appeal is upheld, retroactive benefits shall not be 
provided.
    (iii) At an applicant's request a denied appeal may be forwarded to 
the regional program manager for review, who will provide a decision on 
the appeal within 5 working days.
    (iv) If the regional program manager denies the appeal, there shall 
be no further right of appeal.
    (5) Complaints about discriminatory treatment shall be handled in 
accordance with procedures established at each local WIC Overseas site.
    (h) Operations and Administration. (1) Information collected about 
WIC Overseas applicants and participants shall be collected, maintained, 
and disclosed in accordance with applicable laws and regulations.
    (2) Information and personnel security requirements shall be 
consistent with applicable laws and regulations.

[69 FR 15678, Mar. 26, 2004]



Sec. 199.24  TRICARE standard coverage for certain selected reserve 
members.

    (a) Establishment. TRICARE Reserve Select is established for the 
purpose of offering TRICARE health benefits to eligible members of the 
Selected Reserve and their immediate family.
    (1) Purpose. TRICARE Reserve Select is a premium-based medical 
coverage program that will be available to certain members of the 
Selected Reserve and their immediate family as specified in paragraph 
(b) of this section.
    (2) Statutory Authority. TRICARE Reserve Select is authorized by 10 
U.S.C. 1076d.
    (3) Scope of the Program. TRICARE Reserve Select is applicable in 
the 50 United States, the District of Columbia, Puerto Rico, and, to the 
extent practicable, other areas where members of the Selected Reserve 
serve. In locations other than the 50 states of the United States and 
the District of Columbia, the Assistant Secretary of Defense may 
authorize modifications to the program rules and procedures as may be 
appropriate to the area involved.
    (4) Major Features of TRICARE Reserve Select. The major features of 
the program include the following:
    (i) TRICARE rules applicable. (A) Unless specified in this section 
or otherwise prescribed by the Assistant Secretary of Defense (Health 
Affairs) (ASD(HA)), provisions of 32 CFR Part 199 apply to TRICARE 
Reserve Select.
    (B) Certain special programs established in 32 CFR Part 199 are not 
available to enrollees in TRICARE Reserve Select. These include the 
Supplemental Health Care Program (see Sec. 199.16), the Extended Health 
Care Option Program (see Sec. 199.5), and the Special Supplemental Food 
Program (see Sec. 199.23). The TRICARE Dental Program (see Sec. 
199.13) is independent of this program and is otherwise available to all 
members of the Selected Reserve and their dependents whether or not they 
are enrolled in TRICARE Reserve Select.

[[Page 348]]

    (ii) Enrollment system. Under TRICARE Reserve Select, eligible 
Reserve component members may enroll for self-only or self and family 
coverage. Rules and procedures for enrollment and payment of applicable 
premiums are prescribed in this section. When their enrollment becomes 
effective TRICARE Reserve Select beneficiaries receive the TRICARE 
Standard benefit, as described in Sec. 199.17.
    (iii) Benefits. Eligible persons may be enrolled in TRICARE Reserve 
Select, which features the deductible and cost share provisions of the 
TRICARE Standard plan for active duty family members for both the member 
and the member's dependents. The TRICARE Standard plan is described in 
Sec. 199.17.
    (b) Eligibility for enrollment in TRICARE Reserve Select. (1) 
Eligibility. Individuals are eligible for enrollment in TRICARE Reserve 
Select who meet the eligibility criteria defined in paragraphs 
(b)(1)(i), (b)(1)(ii), or (b)(1)(iii) of this section.
    (i) Members released from active duty after April 26, 2005. A member 
released from active duty after April 26, 2005 that is a member of a 
Reserve component of the Armed Forces is eligible for TRICARE Reserve 
Select if the member:
    (A) Is called or ordered to active duty for a period of more than 30 
days on or after September 11, 2001 under a provision of law referred to 
in 10 U.S.C. 101(a)(13)(B).
    (B) Serves continuously on active duty for 90 days or more pursuant 
to such call or order to active duty (unless such continuous service on 
active duty is less than 90 days solely due to an injury, illness, or 
disease incurred or aggravated while deployed, as provided in 10 U.S.C. 
1076d(b(2)(A));.
    (C) Is released from active duty after April 26, 2005.
    (D) On or before the date of release from active duty, agrees to 
serve continuously in the Selected Reserve for a period of 1 or more 
years upon release from active duty; and
    (E) Meets the qualifications for continued membership in the 
Selected Reserve as determined by the member's Reserve component.
    (ii) Members released from active duty on or before April 26, 2005. 
A member or former member of a Reserve component of the Armed Forces who 
was released from active duty on or before April 26, 2005 is eligible 
for TRICARE Reserve Select if the member:
    (A) Was called or ordered to active duty for a period of more than 
30 days on or after September 11, 2001 under a provision of law referred 
to in 10 U.S.C. 101(a)(13)(B).
    (B) Served continuously on active duty for 90 days or more pursuant 
to such call or order to active duty (unless such continuous service on 
active duty is less than 90 days solely due to an injury, illness, or 
disease incurred or aggravated while deployed, as provided in 10 U.S.C. 
1076d(b(2)(A)).
    (C) Was released from active duty on or before April 26, 2005.
    (D) Prior to enrollment in TRICARE Reserve Select, signs an 
agreement no later than October 28, 2005 to serve continuously in the 
Selected Reserved for a period of 1 or more years; and
    (E) Meets the qualifications for continued membership in the 
Selected Reserve as determined by the member's Reserve component.
    (iii) Immediate family of reserve members. While an eligible member 
of a Reserve component is enrolled in TRICARE Reserve Select, dependents 
of such member, as defined in paragraphs (b)(2)(i) (except former 
spouses) and (b)(2)(ii) of this section are eligible to be enrolled for 
the same period as the member.
    (2) Additional procedures applicable to eligibility. The Reserve 
components are responsible for determining members' duty status, periods 
of obligation, and other military personnel matters that are pertinent 
to establishing eligibility for TRICARE Reserve Select.
    (c) TRICARE Reserve Select enrollment procedures. (1) Enrollment 
required. In order to be covered under TRICARE Reserve Select, eligible 
Reserve component members must complete and submit the applicable 
TRICARE enrollment form, and an initial premium required by paragraph 
(d) of this section. Enrollment is accomplished by submission of an 
application to the appropriate TRICARE Contractor in accordance with 
procedures established by the ASD(HA).

[[Page 349]]

    (2) Election of type of coverage. A member of a Reserve component 
who is eligible for enrollment under paragraph (b) of this section may 
elect self-only or self and family coverage. Family members who may be 
included in such family coverage are dependents referred to in paragraph 
(b)(1)(iii) of this section.
    (3) Period of coverage. Except eligible members released from active 
duty on or before April 26, 2005, a member must before being released 
from active duty enter into an agreement to serve continuously in the 
Selected Reserve, and the member must meet the qualifications for 
continued service in the Selected Reserve as determined by the member's 
Reserve component. The member must then enroll in TRICARE Reserve Select 
prior to 30 days before the expiration of Transition Assistance 
Management Program (TAMP) benefits under Sec. 199.3(e) of this part.
    (i) Except members released from active duty on or before April 26, 
2005, coverage begins at the expiration of TAMP benefits under Sec. 
199.3(e) of this part and runs continuously until eligibility expires or 
is otherwise terminated, or the member is disenrolled. (See paragraphs 
(c)(4)(i), (5), or (6) of this section.) When enrollment is terminated, 
a member may not re-enroll unless recalled to active duty and the member 
re-qualifies for a new period of benefits under paragraph (b) of this 
section.
    (ii) For members released from active duty on or before April 26, 
2005, coverage begins on the date that is the later of the expiration of 
TAMP benefits under Sec. 199.3(e) or the effective date of the member's 
agreement referred to in paragraph (b)(1)(ii)(D) of this section.
    (iii) When a member enrolled in TRICARE Reserve Select is recalled 
to active duty for a period of more than 30 days TRICARE Reserve Select 
coverage is superseded by active duty military medical benefits for the 
member and for any family member enrolled in TRICARE Reserve Select, but 
the coverage period continues to run. When the member is released from 
active duty, TRICARE Reserve Select coverage will resume for the member 
(and the member's family members provided the member had been enrolled 
in self and family coverage on the date TRICARE Reserve Select coverage 
was superseded by active duty health benefits). TRICARE Reserve Select 
coverage will continue until the member's eligibility expires or is 
otherwise terminated, or the member is disenrolled. (See paragraphs 
(c)(4)(i), (5), or (6) of this section.) Following the member's release 
from active duty, TRICARE Reserve Select coverage will also be 
superseded by TAMP benefits under Sec. 199.3(e) of this Part, if 
applicable. In addition, TRICARE Reserve Select coverage is also 
superseded, if applicable, by any period of early TRICARE coverage based 
on delayed effective date orders under Sec. 199.3(b)(5) of this Part or 
by a new enrollment, as a result of re-qualifying through another period 
of active duty service in support of a contingency operation under Sec. 
199.24(c) of this Part. During any period in which TRICARE Reserve 
Select coverage is superseded, no premium payments for TRICARE Reserve 
Select are due.
    (iv) Members who are eligible for TRICARE Reserve Select under 
paragraph (b) of this section may enroll for one year of TRICARE Reserve 
Select coverage for every 90 days of continuous active-duty service, 
subject to the limitation in paragraph (c)(3)(v) of this section. If 
such continuous service on active duty is less than 90 days solely due 
to an injury, illness, or disease incurred or aggravated while deployed, 
then the otherwise eligible member may enroll for one year of TRICARE 
Reserve Select coverage, as provided in 10 U.S.C. 1076d(b(2)(A).
    (v) The number of years for which the member and family are eligible 
under paragraph (c)(3)(iv) of this section may not exceed the number of 
whole years for which the member agrees to continue service in the 
Selected Reserves before coverage begins, per the service agreement 
entered into under paragraph (b)(1) of this section. The number of years 
established by the member's agreement that was entered into prior to 
beginning coverage under TRICARE Reserve Select may not later be 
changed, even if that number of years was fewer than the maximum number 
of years that the member could have established in the agreement. The

[[Page 350]]

number of years of coverage may only be changed if the member is 
recalled to active duty and the member re-qualifies for a new period of 
benefits under paragraph (b) of this section.
    (vi) When a member's eligibility is terminated or the member is 
disenrolled from TRICARE Reserve Select under paragraphs (c)(4)(i), (5), 
or (6) of this section, the member may not re-enroll unless recalled to 
active duty and the member re-qualifies for a new period of benefits 
under paragraph (b) of this section.
    (4) Changes to type of coverage. Under certain circumstances, 
reserve members may change their TRICARE Reserve Select type of 
coverage.
    (i) Disenrollment. Reserve members may disenroll from the program at 
any time by notifying the appropriate TRICARE office. Disenrollment of 
the member will result in automatic disenrollment of the member's family 
members in TRICARE Reserve Select.
    (ii) Change from self and family type of coverage to self-only type 
of coverage. After initial enrollment, sponsors may change type of 
coverage from self and family to self-only only when an event occurs 
that changes the composition of the family, such as divorce, legal 
separation, or death of a family member, or changes in family employment 
or health coverage status. The change will become effective in 
accordance with procedures established by the ASD(HA).
    (iii) Change from self-only type of coverage to self and family type 
of coverage. After initial enrollment, the reserve member may change 
type of coverage from self-only to self and family only when an event 
occurs that changes the composition of the family, such as the birth of 
a child, marriage of the sponsor, legal adoption of a child, or 
placement by a court of a child as a legal ward in the sponsor's home, 
or certain events affecting family health coverage, such as an 
employment change. The change will become effective in accordance with 
procedures established by the ASD(HA).
    (5) Effect of failure to pay applicable premiums. Failure by 
enrollees to make a premium payment as required in a timely manner will 
result in automatic disenrollment from TRICARE Reserve Select and denial 
of payment of claims for services provided on or after the first day of 
the month for which the premium payment was not paid. Beneficiaries 
disenrolled due to lack of premium payments will not be allowed to re-
enroll, absent the member acquiring a new period of eligibility based 
upon qualifying active duty service after the date of disenrollment. 
Disenrollment of the member for failure to pay applicable premiums will 
also result in automatic disenrollment of the member and the member's 
family members from TRICARE Reserve Select.
    (6) Ineligibility. A reserve member who ceases to be eligible for 
TRICARE Reserve Select as specified in paragraph (b) of this section or 
whose eligibility is terminated based on termination of the member's 
service in the Selected Reserve shall be disenrolled and shall no longer 
be eligible. Disenrollment of the member due to ineligibility will 
result in automatic disenrollment of the member's family members in 
TRICARE Reserve Select.
    (7) Effective date of disenrollment. Disenrollments become 
effective:
    (i) In the case of disenrollment due to ineligibility (other than 
relating to the death of a member), on the date of ineligibility.
    (ii) In the case of disenrollment due to nonpayment of premiums, at 
the end of the last month for which premiums were paid.
    (iii) In all other cases, at the end of the month in which the event 
causing disenrollment occurred.
    (8) Periodic revision. Periodically, certain features, rules or 
procedures of TRICARE Reserve Select may be revised. If such revisions 
will have a significant effect on participants' costs or access to care, 
beneficiaries may be given the opportunity to change their enrollment 
status coincident with the revisions.
    (d) TRICARE Reserve Select premiums. Premiums shall be charged for 
coverage under TRICARE Reserve Select. Premiums are to be paid monthly, 
except as otherwise provided through administrative implementation, 
pursuant to procedures established by the ASD(HA).
    (1) Establishment of rates. (i) TRICARE Reserve Select monthly 
premium rates

[[Page 351]]

are established annually on a calendar year basis by the ASD(HA) for the 
two types of coverage--self-only and self and family. The annual rates 
are based on 28 percent of the total estimated amount (rounded to the 
nearest dollar) reasonable for health care coverage for the TRICARE 
Reserve Select eligible population under the TRICARE Standard benefit, 
as determined by the ASD(HA) on an appropriate actuarial basis. The 
monthly rate for each month of a calendar year is one-twelfth of the 
annual rate for that calendar year, rounded to the nearest dollar.
    (ii) Initial annual rates are based on the annual premiums for the 
Blue Cross and Blue Shield Standard Service Benefit Plan under the 
Federal Employees Health Benefits Program, a nationwide plan closely 
resembling TRICARE Standard coverage, with an adjustment based on 
estimated differences in covered populations, as determined by the 
ASD(HA).
    (2) Premium adjustments. In addition to the determinations described 
in paragraph (d)(1) of this section, premium adjustments may be made 
prospectively for any calendar year to reflect any significant program 
changes or any actual experience in the costs of administering the 
TRICARE Reserve Select Program.
    (3) Premium rates for calendar year 2005. (i) For calendar year 
2005, the annual premium for self-only coverage under TRICARE Reserve 
Select is $900.
    (ii) For calendar year 2005, the annual premium for self and family 
coverage under TRICARE Reserve Select is $2,796.
    (e) Relationship to Continued Health Care Benefits Program. If at 
the time a member enrolls in TRICARE Reserve Select, or resumes TRICARE 
Reserve Select coverage after a period in which coverage was superseded 
under paragraph (c)(3)(iii) of this section, the member was also 
eligible to enroll in the Continued Health Care Benefits Program (CHCBP) 
under Sec. 199.20(d)(1)(i) of this part (except to the extent 
eligibility in CHCBP was affected by enrollment in TRICARE Reserve 
Select), enrollment in TRICARE Reserve Select will be deemed to also 
constitute preliminary enrollment in CHCBP. If for any reason the member 
becomes disenrolled from TRICARE Reserve Select before the date that is 
18 months after discharge or release from the most recent period of 
active duty upon which CHCBP eligibility was based, the member or the 
member's family members eligible to be included in CHCBP coverage may, 
within 30 days of the effective date of the disenrollment, begin CHCBP 
coverage by paying the applicable premium. The period of coverage will 
be as provided in Sec. 199.20(d)(6) of this part.
    (f) Preemption of State laws. (1) Pursuant to 10 U.S.C. 1103, the 
Department of Defense has determined that in the administration of 
chapter 55 of title 10, U.S. Code, preemption of State and local laws 
relating to health insurance, prepaid health plans, or other health care 
delivery or financing methods is necessary to achieve important Federal 
interests, including but not limited to the assurance of uniform 
national health programs for military families and the operation of such 
programs at the lowest possible cost to the Department of Defense, that 
have a direct and substantial effect on the conduct of military affairs 
and national security policy of the United States. This determination is 
applicable to contracts that implement this section.
    (2) Based on the determination set forth in paragraph (e)(1) of this 
section, any State or local law or regulation pertaining to health 
insurance, prepaid health plans, or other health care delivery, 
administration, and financing methods is preempted and does not apply in 
connection with TRICARE Reserve Select. Any such law, or regulation 
pursuant to such law, is without any force or effect, and State or local 
governments have no legal authority to enforce them in relation to 
TRICARE Reserve Select. (However, the Department of Defense may, by 
contract, establish legal obligations on the part of DoD contractors to 
conform with requirements similar to or identical to requirements of 
State or local laws or regulations with respect to TRICARE Reserve 
Select.)
    (3) The preemption of State and local laws set forth in paragraph 
(e)(2) of this section includes State and local laws imposing premium 
taxes on

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health insurance carriers or underwriters or other plan managers, or 
similar taxes on such entities. Such laws are laws relating to health 
insurance, prepaid health plans, or other health care delivery or 
financing methods, within the meaning of 10 U.S.C. 1103. Preemption, 
however, does not apply to taxes, fees, or other payments on net income 
or profit realized by such entities in the conduct of business relating 
to DoD health services contracts, if those taxes, fees or other payments 
are applicable to a broad range of business activity. For the purposes 
of assessing the effect of Federal preemption of State and local taxes 
and fees in connection with DoD health services contracts, 
interpretations shall be consistent with those applicable to the Federal 
Employees Health Benefits Program under 5 U.S.C. 8909(f).
    (g) Administration. The ASD(HA) may establish other rules and 
procedures for the effective administration of TRICARE Reserve Select, 
and may authorize exceptions to requirements of this section, if 
permitted by law, based on extraordinary circumstances.

[70 FR 12802, Mar. 16, 2005]

                    Appendix A to Part 199--Acronyms

AFR--Air Force Regulation
AR--Army Regulation
ASD (HA)--Assistant Secretary of Defense (Health Affairs)
CCLR--Claims Collection Litigation Report
CEOB--CHAMPUS Explanation of Benefits
CFR--Code of Federal Regulations
CHAMPUS--Civilian Health and Medical Program of the Uniformed Services
CRD--Chronic Renal Disease
CT--Computerized Tomography
DASD (A)--Deputy Assistant Secretary of Defense (Administration)
D.D.S.--Doctor of Dental Surgery
DEERS--Defense Enrollment Eligibility Reporting System
DHHS--Department of Health and Human Services
D.M.D.--Doctor of Dental Medicine
DME--Durable Medical Equipment
D.O.--Doctor of Osteopathy
DoD--Department of Defense
DSM-III--Diagnostic and Statistical Manual of Mental Disorders (Third 
Edition)
ECHO--Extended Care Health Option
EEG--Electroencephalogram
EST--Electroshock Therapy
FAR--Federal Acquisition Regulation
FEHBP--Federal Employees Health Benefits Program
FMCRA--Federal Medical Care Recovery Act
FR--Federal Register
HBA--Health Benefits Advisor
HL--Hearing Threshold Level
Hz--Hertz
ICD-9-CM--International Classification of Diseases, 9th Revision, 
Clinical Modification
ICU--Intensive Care Unit
IQ--Intelligence Quotient
JCAH--Joint Commission on Accreditation of Hospitals
L.P.N.--Licensed Practical Nurse
L.V.N.--Licensed Vocational Nurse
MBD--Minimal Brain Dysfunction
MCO--Marine Corps Order
M.D.--Doctor of Medicine
MIA--Missing in Action
NATO--North Atlantic Treaty Organization
NAVMILPERSCOMINST--Navy Military Personnel Command Instruction
NAVPERS--Navy Personnel
NOAA--National Oceanic and Atmospheric Administration
OCHAMPUS--Office of Civilian Health and Medical Program of the Uniformed 
Services
OCHAMPUSEUR--Office of Civilian Health and Medical Program of the 
Uniformed Services for Europe
OCHAMPUSPAC--Office of Civilian Health and Medical Program of the 
Uniformed Services for the Pacific Area
OCHAMPUSSO--Office of Civilian Health and Medical Program of the 
Uniformed Services for the Southern Hemisphere
OMB--Office of Management and Budget
PKU--Phenylketonuria
R.N.--Registered Nurse
RTC--Residential Treatment Center
SNF--Skilled Nursing Facility
STF--Specialized Treatment Facility
U.S.C.--United States Code
USPHS--U.S. Public Health Service

[51 FR 24008, July 1, 1986, as amended at 62 FR 35097, June 30, 1997; 63 
FR 48448, Sept. 10, 1998; 69 FR 44952, July 28, 2004; 69 FR 51569, Aug. 
20, 2004]



PART 203_TECHNICAL ASSISTANCE FOR PUBLIC PARTICIPATION (TAPP) IN DEFENSE 
ENVIRONMENTAL RESTORATION ACTIVITIES--Table of Contents




Sec.
203.1 Authority.
203.2 Purpose and availability of referenced material.
203.3 Definitions.
203.4 Major components of the TAPP process.
203.5 TAPP process.
203.6 Cost principles.
203.7 Eligible applicants.

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203.8 Evaluation criteria.
203.9 Submission of application.
203.10 Eligible activities.
203.11 Ineligible activities.
203.12 Technical assistance for public participation provider 
          qualifications.
203.13 Procurement.
203.14 RAB/TRC reporting requirements.
203.15 Method of payment.
203.16 Record retention and audits.
203.17 Technical assistance provider reporting requirements.
203.18 Conflict of interest and disclosure requirements.
203.19 Appeals process.

Appendix A to Part 203--Technical Assistance for Public Participation 
          Application Request Form

    Authority: 10 U.S.C. 2705.

    Source: 63 FR 5261, Feb. 2, 1998, unless otherwise noted.



Sec. 203.1  Authority.

    Part 203 is issued under the authority of section 2705 of Title 10, 
United States Code. In 1994, Congress authorized the Department of 
Defense (DoD) to develop a program to facilitate public participation by 
providing technical assistance to local community members of Restoration 
Advisory Boards (RABs) and Technical Review Committees (TRCs) (section 
326 of the National Defense Authorization Act for Fiscal Year 1995, 
Pub.L. 103-337). In 1996, Congress revised this authority (section 324 
of the National Defense Authorization Act for Fiscal Year 1996, Pub.L. 
104-112). It is pursuant to this revised authority, which is codified as 
new subsection (3) of section 2705, that the Department of Defense 
issues this part.



Sec. 203.2  Purpose and availability of referenced material.

    (a) This part establishes the Technical Assistance for Public 
Participation (TAPP) program for the Department of Defense. It sets 
forth policies and procedures for providing technical assistance to 
community members of TRCs and RABs established at DoD installations in 
the United States and its territories. This part sets forth the 
procedures for the Department of Defense to accept and evaluate TAPP 
applications, to procure the assistance desired by community members of 
RABs and TRCs, and to manage the TAPP program. These provisions are 
applicable to all applicants/recipients of technical assistance as 
discussed in Sec. 203.4 of this part.
    (b) Any reference to documents made in this part necessary to apply 
for TAPP (e.g., the Office of Management and Budget (OMB) Circulars or 
DoD forms) are available through the DoD installations, the military 
department headquarters, or from the Department of Defense, Office of 
the Deputy Under Secretary of Defense for Environmental Security 
(DUSD(ES)), 3400 Defense Pentagon, Washington, DC 20301-3400.



Sec. 203.3  Definitions.

    As used in this part, the following terms shall have the meaning set 
forth:
    Affected. Subject to an actual or potential health or environmental 
threat arising from a release or a threatened release at an installation 
where the Secretary of Defense is planning or implementing environmental 
restoration activities including a response action under the 
Comprehensive Environmental Response Compensation and Liability Act as 
amended (CERCLA), corrective action under the Resource Conservation and 
Recovery Act (RCRA), or other such actions under applicable Federal or 
State environmental restoration laws. This would include actions at 
active, closing, realigning, and formerly used defense installations. 
Examples of affected parties include individuals living in areas 
adjacent to installations whose health is or may be endangered by the 
release of hazardous substances at the facility.
    Applicant. Any group of individuals that files an application for 
TAPP, limited by this part to community members of the RAB or TRC.
    Application. A completed formal written request for TAPP that is 
submitted to the installation commander or to the identified decision 
authority designated for the installation. A completed application will 
include a TAPP project description.
    Assistance provider. An individual, group of individuals, or company 
contracted by the Department of Defense to provide technical assistance 
under the Technical Assistance for Public Participation program 
announced in this part.

[[Page 354]]

    Assistance provider's project manager. The person legally authorized 
to obligate the organization executing a TAPP purchase order to the 
terms and conditions of the DoD's regulations and the contract, and 
designated by the provider to serve as the principal contact with the 
Department of Defense.
    Community Co-chair. The individual selected by the community members 
of the RAB/TRC to represent them.
    Community member. A member of the RAB or TRC who is also a member of 
the affected community. For the purpose of this part, community members 
do not include local, State, or Federal government officials acting in 
any official capacity.
    Community point of contact. The community member of the RAB or TRC 
designated in the TAPP application as the focal point for communications 
with the Department of Defense regarding the TAPP procurement process. 
The community point of contact is responsible for completing the 
reporting requirements specified in Sec. 203.14 of this part.
    Contact. A written agreement between the installation or other 
instrumentality of the Department of Defense and another party for 
services or supplies necessary to complete the TAPP project. Contracts 
include written agreements and subagreements for professional services 
or supplies necessary to complete the TAPP projects, agreements with 
consultants, and purchase orders.
    Contracting officer. The Federal official designated to manage the 
contract used to fulfill the TAPP request by the RAB or TRC.
    Contractor. Any party (e.g., Technical Assistance Provider) to whom 
the installation or other instrumentality of the Department of Defense 
awards a contract. In the context of this part, it is synonymous with 
assistance provider.
    Cost estimate. An estimate of the total funding required for the 
assistance provider to complete the TAPP project.
    DoD Component. The military services including the Army, Navy, 
Marine Corps, and Air Force and those defense agencies with an 
environmental restoration program.
    DoD Component Deputy Assistant Secretary. The individual in the 
office of the Secretary of the Army, Navy, Air Force responsible for 
making environmental decisions for their component or the director of 
the Defense Agencies.
    DoD Installation. A facility that is controlled or operated or 
otherwise possessed by a department, or agency of the United States 
Department of Defense within the United States and its territories. In 
the context of this part, formerly used defense sites (FUDS) are 
included within the definition of a DoD Installation.
    DoD RAB Co-chair. The individual selected by the installation 
commander, or equivalent, to serve as the installation co-chair of the 
RAB, represent DoD's interests, serve as liaison with community RAB 
members, and advocate RAB concerns within the installation staff.
    EPA. The United States Environmental Protection Agency.
    Firm fixed price contract. A contract wherein funding is fixed, 
prior to the initiation of a contract, for an agreed upon service or 
product.
    Formerly Used Defense Site (FUDS). A site that has been owned by, 
leased to, possessed by, or otherwise under the jurisdiction of the 
Department of Defense. The FUDS program does not apply to those sites 
outside U.S. jurisdiction.
    Purchase order. An offer by the Government to buy supplies or 
services from a commercial source, upon specified terms and conditions, 
the total cost of which cannot exceed the small purchase limit of 
$100,000. Purchase orders are governed by Federal Acquisition 
Regulations (FAR) (48 CFR part 13), and the Simplified Acquisition 
Procedures (SAP).
    Restoration Advisory Board (RAB). The RAB is a forum for 
representatives of the Department of Defense, local community, and EPA 
and/or State, local, and tribal officials to discuss and exchange 
information about the installation's environmental restoration program. 
The RAB provides stakeholders an opportunity make their views known, 
review progress and participate in dialogue with the decision makers.
    Statement of Work. That portion of a contract which describes the 
actual

[[Page 355]]

work to be done by means of specifications or minimum requirements, 
quantities, performance dates, time and place of performance, and 
quality requirements. It is key to any procurement because it is the 
basis for the contractor's response and development of proposed costs.
    TAPP approval. Signifies that the Department of Defense has approved 
the eligibility of the proposed TAPP project and will, subject to the 
availability of funds, undertake an acquisition to obtain the services 
specified in the TAPP application submitted by the RAB or TRC. The 
government will conduct the acquisition in accordance with all of the 
applicable rules and requirements of the FAR and the SAP. Approval does 
not constitute an agreement to direct an award to a specific source if 
such an action would be contrary to the FAR.
    TAPP project description. A discussion of the assistance requested 
that includes the elements listed in Section 203.10 of this part. The 
project description should contain sufficient detail to enable the 
Department of Defense to determine the nature and eligibility of the 
project, identify potential providers and estimate costs, and prepare a 
statement of work to begin the procurement process.
    Technical assistance. Those activities specified in Sec. 203.10 of 
this part that will contribute to the public's ability to provide input 
to the decision-making process by improving the public's understanding 
of overall conditions and activities. Technical assistance may include 
interpreting technical documents; assessing technologies; participating 
in relative risk evaluations, understanding health implications; and, 
training.
    Technical assistance does not include those activities prohibited 
under Section 203.11 of this part, such as litigation or underwriting 
legal actions; political activity; generation of new primary data such 
as well drilling and testing, including split sampling; reopening final 
DoD decisions or conducting disputes with the Department of Defense; or 
epidemiological or health studies, such as blood or urine testing.
    Technical Review Committee (TRC). A group comprised of the 
Department of Defense, EPA, State, and local authorities and a public 
representative of the community formed to meet the requirements of 10 
U.S.C. 2705(c), the Department of Defense Environmental Restoration 
Program. Primarily functioning to review installation restoration 
documents, these committees are being expanded and modified at 
installations where interest or need necessitates the creation of a RAB.



Sec. 203.4  Major components of the TAPP process.

    (a) The Department of Defense will issue purchase orders to 
technical assistance, facilitation, training, and other public 
participation assistance providers subject to the purchase limit per 
order as resources continue to be available. If multiple purchase orders 
are needed to assist community members of a particular RAB or TRC, the 
combined sum of these purchase orders cannot exceed $100,000 or, during 
any one year, the lesser of $25,000 or 1 percent of the installation's 
total projected environmental restoration cost-to-complete. Note that 
these limitations refer to the maximum allowable technical assistance 
funding per RAB/TRC. Resources available within a given year may vary. 
These limitations apply unless a waiver is granted by the DoD Component 
Secretary or equivalent for the installation in question. The $100,000 
total and $25,000 annual limitations may be waived, as appropriate, to 
reflect the complexity of response action, the nature and extent of 
contamination at the installation, the level of activity at the 
installation, projected total needs as identified by the TAPP recipient, 
the size and diversity of the affected population, and the ability of 
the TAPP recipient to identify and raise funds from other sources.
    (b) Community members of the RAB/TRC will provide a description of 
the services requested (TAPP Project Description) and, if desired, the 
names of one or more proposed technical assistance providers to the DoD 
RAB Co-Chair, who will ensure the application is submitted to the 
installation commander or other designated authority

[[Page 356]]

and to the appropriate DoD contracting office. Technical assistance 
providers proposed by the community members of a RAB or TRC at each DoD 
installation that meets the minimum set of organizational qualifications 
guidelines provided by the Department of Defense in Sec. 203.12 of this 
part will be added to the governments list of bidders for the proposed 
procurement.



Sec. 203.5  TAPP process.

    This section provides an overview of the TAPP process. Specific 
details referred to in this section can be found in subsequent sections 
of this part.
    (a) TAPP funding. Funding for this TAPP program will come from the 
Environmental Restoration Accounts established for Army, Navy, and Air 
Force for operational installations. The funding for Defense Agencies' 
operating installations will be from the Defense-Wide Environmental 
Restoration Account. Funding will be from the component's base closure 
account for transferring or closing installations. Funding for Formerly 
Used Defense Sites will come from the Environmental Restoration Account 
established for Formerly Used Defense Sites. After justification of the 
TAPP proposal, each DoD Component will make funds available from their 
individual installation's environmental restoration or BRAC accounts, 
considering a number of factors related to the restoration program at 
the installation and its impact upon the community. These factors 
include, but are not limited to:
    (1) Closure status.
    (2) Budget.
    (3) Installation restoration program status.
    (4) Presence (or absence) of alternate funding.
    (5) Relative risk posed by sites at the installation.
    (6) Type of task to be funded.
    (7) Community concern.
    (8) Available funding.
    (b) Identification of proposed TAPP project. Eligible applicants of 
RABs and TRCs, established in Sec. 203.7 of this part, should determine 
whether a TAPP project is required to assist the community members of 
the RAB or TRC to interpret information regarding the nature and extent 
of contamination or the proposed remedial actions. Eligibility 
requirements for TAPP projects are described in Sec. Sec. 203.10 and 
203.11 of this part. In keeping with the requirements of 10 U.S.C. 
2705(e), the RAB or TRC must be able to demonstrate that the technical 
expertise necessary for the proposed TAPP project is not available 
through the Federal, State, or local agencies responsible for overseeing 
environmental restoration at the installation, or that the selection of 
an independent provider will contribute to environmental restoration 
activities and the community acceptance of such activities. In addition, 
the Department of Defense encourages the RAB or TRC to seek other 
available sources of assistance prior to submitting a request for TAPP 
in order to preserve limited resources. These sources include DoD's 
installation restoration contractor, or other DoD contractors or 
personnel, EPA or state regulatory personnel, volunteer services from 
local universities or other experts, or assistance from state and local 
health and environmental organizations.
    (c) TAPP project request. The RAB or TRC should notify the 
installation of its intent to pursue TAPP upon the determination that 
other sources of assistance are unavailable or unlikely to contribute to 
the community acceptance of environmental restoration activities at the 
installation and should prepare a formal request specifying the type of 
assistance required and, if desired, one or more sources for this 
assistance. Details concerning this request are stated in Sec. 203.9 of 
this part. The RAB or TRC must certify to the Department of Defense that 
the TAPP request represents a request by a majority of the community 
members of the RAB or TRC. The RAB or TRC should ensure that the request 
meets the eligibility requirements specified in Sec. Sec. 203.10 and 
203.11 of this part. Furthermore, the RAB or TRC may outline additional 
criteria for the Department of Defense to consider in the selection of a 
provider (such as knowledge of local environmental conditions or 
specific technical issues, a prior work history within the study area 
which has relevant specific circumstances or

[[Page 357]]

unique challenges, or other relevant expertise or capabilities), keeping 
in mind that providers must meet the minimum technical qualifications 
outlined in Sec. 203.12 of this part. The formal request should be 
submitted to the installation commander or designated decision 
authority, either directly, or through the DoD RAB Co-chair. The 
installation commander, or other designated decision authority, will 
review the proposed project to determine whether the proposed project 
conforms to the eligibility requirements. If the installation commander, 
or other designated authority, fails to approve the project request, the 
rationale for that decision will be provided to the RAB/TRC in writing.
    (d) Purchase orders. Upon receipt of a completed TAPP request, the 
installation will begin the procurement process necessary to obtain the 
desired services by means of a purchase order or will forward the 
request to the contracting authority designated by the DoD Component to 
act for that installation. The government is required to follow the 
rules and regulations for purchase orders as outlined in the FAR (48 CFR 
part 13). As a result, the government cannot direct awards to a 
specified supplier unless the procurement is under $2,500, and then only 
if the cost is comparable to other suppliers. For procurements over 
$2,500 but under $100,000, the acquisition is reserved for small 
businesses, unless there is a reasonable expectation that small 
businesses could not provide the best scientific and technological 
sources consistent with the demands of the proposed acquisition for the 
best mix of cost, performance, and schedules. Furthermore, the award 
must be on a competitive basis. In addition to proposing potential 
providers, the application for technical assistance may indicate 
specific criteria or qualifications that are deemed necessary by the 
RAB/TRC for the completion of the project to their satisfaction. This 
information will be used to assist the Department of Defense in 
preparing a bidders list. The Department of Defense will solicit bids 
from those providers meeting the criteria and will select a provider 
offering the best value to the government. Should the procurement 
process identify a qualified respondent other than the proposed 
provider(s) identified by the RAB/TRC or fail to identify any qualified 
respondents, the RAB/TRC will be consulted prior to the award of a 
purchase order. If the Department of Defense determines that the TAPP 
request represents an eligible project for which no funds are available, 
it will ask the RAB or TRC to specify whether the project should be 
reconsidered upon the availability of additional funds.
    (e) Reporting requirements. The applicant must assure that copies of 
delivered reports are made available to the Department of Defense and 
must comply with the reporting requirements established in Sec. 203.14 
of this part.



Sec. 203.6  Cost principles.

    (a) Non-profit contractors must comply with the cost principles in 
OMB Circular A-122. Copies of the circular may be obtained from EOP 
Publications, 725 17th NW, NEOB, Washington, DC 20503.
    (b) For-profit contractors and subcontractors must comply with the 
cost principles in the FAR (48 CFR part 31).



Sec. 203.7  Eligible applicants.

    Eligible applicants are community members of RABs or TRCs. 
Furthermore, the RABs or TRCs must be comprised of at least three 
community members to ensure community interests are broadly represented. 
The applicant must certify that the request represents the wishes of a 
simple majority of the community members of the RAB or TRC. 
Certification includes, but is not limited to, the results of a roll 
call vote of community members of the RAB or TRC documented in the 
meeting minutes. Other requirements of the application are detailed in 
Sec. 203.9 of this part.



Sec. 203.8  Evaluation criteria.

    The Department of Defense will begin the TAPP procurement process 
only after it has determined that all eligibility and responsibility 
requirements listed in Sec. Sec. 203.6, 203.7, and 203.9 of this part 
are met, and after review of the specific provider qualifications as 
submitted in the narrative section of the application. In addition, the 
proposed

[[Page 358]]

TAPP project must meet the eligibility criteria as specified in 
Sec. Sec. 203.10 and 203.11 of this part. Projects that fail to meet 
those requirements relating to the relevance of the proposed project to 
the restoration activities at the installation will not be approved.



Sec. 203.9  Submission of application.

    The applicant must submit a TAPP application to begin the TAPP 
procurement process. The application form is included as appendix A of 
this part and can be obtained from the DoD installation, the DoD 
Component headquarters, or directly from the Department of Defense, 
Office of the Deputy Under Secretary of Defense for Environmental 
Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400. The 
applications will not be considered complete until the following data 
elements have been entered into the form:
    (a) Installation.
    (b) Source of TAPP request (names of RAB or TRC).
    (c) Certification of majority request.
    (d) RAB/TRC contact point for TAPP project.
    (e) Project title.
    (f) Project type (e.g. data interpretation, training, etc.).
    (g) Project purpose and description (descriptions, time and 
locations of products or services desired).
    (h) Statement of eligibility of project.
    (i) Proposed provider, if known.
    (j) Specific qualifications or criteria for provider.



Sec. 203.10  Eligible activities.

    (a) TAPP procurements should be pursued by the RAB or TRC only to 
the extent that Federal, State, or local agencies responsible for 
overseeing environmental restoration at the facility do not have the 
necessary technical expertise for the proposed project, or the proposed 
technical assistance will contribute to the efficiency, effectiveness, 
or timeliness of environmental restoration activities at the 
installation and is likely to contribute to community acceptance of 
those activities.
    (b) TAPP procurements may be used to fund activities that will 
contribute to the public's ability to provide advice to decision-makers 
by improving the public's understanding of overall conditions and 
activities. Categories of eligible activities include the following:
    (1) Interpret technical documents. The installation restoration 
program documents each stage of investigation and decision-making with 
technical reports that summarize data and support cleanup decisions. 
Technical assistance may be provided to review plans and interpret 
technical reports for community members of RABs and TRCs. These reports 
include, but are not limited to:
    (i) Installation restoration program site studies, engineering 
documents, such as site inspections, remedial investigations, 
feasibility studies, engineering evaluation and cost analyses, and 
decision documents (including records of decision);
    (ii) Risk assessments, including baseline and ecological risk 
assessments conducted by the installation; and
    (iii) Health assessments, such as those conducted by the Agency for 
Toxic Substances and Disease Registry (ATSDR).
    (2) Assess technologies. Technical assistance may be provided to 
help RAB/TRC community members understand the function and implications 
of those technologies selected to investigate or clean up sites at the 
installation.
    (3) Participate in relative risk site evaluations. Technical 
assistance may be provided to help RAB/TRC community members contribute 
to the relative risk evaluation process for specific sites.
    (4) Understand health implications. Technical assistance may be 
provided to help RAB/TRC community members interpret the potential 
health implications of cleanup levels or remedial technologies, or to 
explain the health implications of site contaminants and exposure 
scenarios.
    (5) Training, where appropriate. Technical trainers on specific 
restoration issues may be appropriate in circumstances where RAB/TRC 
members need supplemental information on installation restoration 
projects.



Sec. 203.11  Ineligible activities.

    The following activities are ineligible for assistance under the 
TAPP program:

[[Page 359]]

    (a) Litigation or underwriting legal actions, such as paying for 
attorney fees or paying for a technical assistance provider to assist an 
attorney in preparing legal action or preparing for and serving as an 
expert witness at any legal proceeding regarding or affecting the site.
    (b) Political activity and lobbying as defined by OMB Circular A-
122.
    (c) Other activities inconsistent with the cost principles stated in 
OMB Circular A-122, ``Cost Principles for Non-Profit Organizations.''
    (d) Generation of new primary data, such as well drilling and 
testing, including split sampling.
    (e) Reopening final DoD decisions, such as the Records of Decision 
(see limitations on judicial review of remedial actions under the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) Section 113(h)) or conducting disputes with the Department of 
Defense).
    (f) Epidemiological or health studies, such as blood or urine 
testing.
    (g) Community outreach efforts, such as renting a facility and 
conducting public meetings, or producing and distributing newsletters.



Sec. 203.12  Technical assistance for public participation provider 
qualifications.

    (a) A technical assistance provider must possess the following 
credentials:
    (1) Demonstrated knowledge of hazardous or toxic waste issues and/or 
laws.
    (2) Academic training in a relevant discipline (e.g., biochemistry, 
toxicology, environmental sciences, engineering).
    (3) Ability to translate technical information into terms 
understandable to lay persons.
    (b) A technical assistance provider should possess the following 
credentials:
    (1) Experience working on hazardous or toxic waste problems.
    (2) Experience in making technical presentations.
    (3) Demonstrated writing skills.
    (4) Previous experience working with affected individuals or 
community groups or other groups of individuals.
    (c) The technical assistance provider's qualifications will vary 
according to the type of assistance to be provided. Community members of 
the RAB/TRC may suggest additional provider qualifications as part of 
the application for technical assistance. These additional 
qualifications may be used by the Department of Defense to target the 
most appropriate providers during the procurement process. Examples of 
such criteria could include prior work in the area, knowledge of local 
environmental conditions or laws, specific technical capabilities, or 
other relevant expertise.



Sec. 203.13  Procurement.

    Procurements will be conducted as purchase orders in accordance with 
the FAR (48 CFR part 13). Under these procedures, procurements not 
exceeding $100,000 are reserved exclusively for small businesses, and 
will be conducted as competitive procurements. Procurements below a 
value of $2,500 are considered ``micro-purchases.'' These procurements 
do not require the solicitation of bids and may be conducted at the 
discretion of the contracting officer.



Sec. 203.14  RAB/TRC reporting requirements.

    The community point of contact of the RAB or TRC must submit a 
report, to be provided to the installation and to DUSD(ES), to enable 
the Department of Defense to meet DoD reporting requirements to 
Congress. This report should include a description of the TAPP project, 
a summary of services and products obtained, and a statement regarding 
the overall satisfaction of the community member of the RAB or TRC with 
the quality of service and/or products received.



Sec. 203.15  Method of payment.

    The SAP set forth in FAR (48 CFR part 13) require purchase orders to 
be conducted on a firm-fixed-price basis, unless otherwise authorized by 
agency procedures. The Department of Defense anticipates all TAPP awards 
to be firm-fixed-price procurements.

[[Page 360]]



Sec. 203.16  Record retention and audits.

    The recipient technical assistance providers shall keep and preserve 
detailed records in connection with the contract reflecting 
acquisitions, work progress, reports, expenditures and commitments, and 
indicate the relationship to established costs and schedules.



Sec. 203.17  Technical assistance provider reporting requirements.

    Each technical assistance provider shall submit progress reports, 
financial status reports, materials prepared for the RAB/TRC, and a 
final report to the DoD installation for the TAPP project as specified 
by the specific purchase order agreement. The final report shall 
document TAPP project activities over the entire period of support and 
shall describe the achievements with respect to stated TAPP project 
purposes and objectives.



Sec. 203.18  Conflict of interest and disclosure requirements.

    The Department of Defense shall require each prospective assistance 
provider on any contract to provide, with its bid or proposal:
    (a) Information on its financial and business relationship with the 
installation, RAB/TRC members, or any/all potentially responsible 
parties (PRPs) at the site, and with their parent companies, 
subsidiaries, affiliates, subcontractors, contractors, and current 
clients or attorneys and agents. This disclosure requirement encompasses 
past and anticipated financial and business relationships, including 
services related to any proposed or pending litigation, with such 
parties.
    (b) Certification that, to the best of its knowledge and belief, it 
has disclosed such information or no such information exists.
    (c) A statement that it shall disclose immediately any such 
information discovered after submission of its bid or after award. The 
contracting officer shall evaluate such information and shall exclude 
any prospective contractor if the contracting officer determines the 
prospective contractor has a potential conflict of interest that is both 
significant and cannot be avoided or otherwise resolved. If, after 
award, the contracting officer determines that a conflict of interest 
exists that is both significant and cannot be avoided or resolved, the 
contract will be terminated for cause.
    (d) Contractors and subcontractors may not be technical assistance 
providers to community members of RABs/TRCs at an installation where 
they are performing cleanup activities for the Federal or State 
government or any other entity.



Sec. 203.19  Appeals process.

    DoD Components will establish an appeals process to settle potential 
disputes between the Department of Defense and the public regarding 
certain decisions arising out of the TAPP process. The Department of 
Defense recognizes that the RAB/TRC may disagree with the findings of 
the installation commander that a proposed TAPP project is ineligible, 
either because of the availability of alternate sources of assistance or 
because the project does not meet the eligibility criteria established 
in this part. It is in the best interests of the Department of Defense 
and the community members of RABs and TRCs to anticipate and avoid 
disputes and to work cooperatively to resolve potential differences of 
opinion. However, in certain circumstances, the RAB/TRC community 
members may feel that their needs were not adequately served by the 
decisions of the Department of Defense. In this instance, the 
hierarchical structure and chain-of-command within each DoD Component 
will serve as the avenue for appeal. Appeals will be considered within 
the chain-of-command, and, in general, will be resolved at the lowest 
level possible. The highest level of appeal will be at the DoD Component 
Deputy Assistant Secretary level with authority over the DERP and BRAC 
environmental programs. Inherently governmental functions, such as the 
procurement process governed by the FAR, are not subject to appeal.

[[Page 361]]

 Appendix A to Part 203--Technical Assistance for Public Participation 
                              Request Form
[GRAPHIC] [TIFF OMITTED] TR02FE98.006


[[Page 362]]


[GRAPHIC] [TIFF OMITTED] TR02FE98.007



PART 204_USER CHARGES--Table of Contents




Sec.
204.1 Reissuance and purpose.
204.2 Applicability.
204.3 Definitions.
204.4 Policy.
204.5 Responsibilities.

[[Page 363]]

204.6 Charges and fees.
204.7 Collections.
204.8 Legislative proposals.
204.9 Examples of benefits not to be charged under provisions of Sec. 
          204.4(c)(4) of this part.
204.10 Schedule of fees and rates.

    Authority: 31 U.S.C. 483a.

    Source: 51 FR 16024, Apr. 23, 1986, unless otherwise noted. 
Redesignated at 56 FR 64482, Dec. 10, 1991.



Sec. 204.1  Reissuance and purpose.

    This part reissues 32 CFR part 204 and implements the DoD program 
under 31 U.S.C. 9701, and OMB Circular A-25 for establishing appropriate 
charges for authorized services provided by DoD organizations.

[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991]



Sec. 204.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Organization of the Joint Chiefs of Staff, the 
Unified and Specified Commands, and the Defense Agencies (hereafter 
referred to collectively as ``DoD Components''). None of the provisions 
in this part should be construed as providing authority for the sale or 
lease of property, or the rendering of special services. Actions to 
convey such special benefits must be authorized by separate authority. 
The user charge policy is applicable except when other statutes or 
directives specifically direct other practices or procedures.



Sec. 204.3  Definitions.

    Recipient. One who requests or receives the benefits of the 
service(s) provided.



Sec. 204.4  Policy.

    (a) General. It is DoD policy not to compete with available 
commercial facilities (see 32 CFR part 169a) in providing special 
services or in the sale or lease of property to private parties and 
agencies outside the Federal Government. However, when a service or sale 
is made that conveys special benefits to recipients, above and beyond 
those accruing to the public at large, a reasonable charge shall be made 
to each identifiable recipient, except as otherwise authorized by the 
Secretary of Defense. A special benefit will be considered to accrue, 
and a charge shall be imposed when the service rendered:
    (1) Enables the recipient to obtain more immediate or substantial 
gain or values (which may or may not be measureable in monetary terms) 
than those which accrue to the general public; or
    (2) Is performed at the request of the recipient and is above and 
beyond the services regularly received by or available without charge to 
the general public.
    (b) Costing. (1) A charge shall be imposed to recover the full cost 
to the Federal Government of rendering a service or the fair market 
value of such service, whichever is higher. Fair market value shall be 
determined in accordance with commercial rates in the local geographical 
area. In the absence of a known market value, charges shall be made 
based on recovery of full costs to the Federal Government.
    (2) When federally owned resources or property are leased or sold, a 
fair market value shall be obtained. Fair market value shall be 
determined by the application of sound business management principles 
and, so far as practicable and feasible, in accordance with comparable 
commercial practices. Charges based on fair market value need not be 
limited to the recovery of costs; they may produce net revenues to the 
Government.
    (c) Exclusions and exceptions. (1) The provisions of this part do 
not apply when other statutes or directives require different practices 
or procedures such as for:
    (i) Morale, welfare, and recreation services to military personnel 
and civilian employees of the Department of Defense and other services 
provided in accordance with Sec. 204.9.
    (ii) Sale or disposal of surplus property under approved programs 
(See DoD Instruction 7310.1 \1\).
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (iii) Services furnished the general public relating to, or in 
furtherance of, the U.S. Armed Forces recruiting program.

[[Page 364]]

    (iv) Services furnished to representatives of the public information 
media in the interest of public understanding of the U.S. Armed Forces.
    (v) U.S. Armed Forces participation in public events. Charges for 
such participation are governed by the provisions of 32 CFR part 238.
    (vi) Records made available to the public, under the Freedom of 
Information Act, pursuant to 32 CFR part 286. Charges for such record 
searches and copies of records are governed by Sec. 286.61.
    (vii) Services furnished to non-Federal audio-visual media Charges 
for such services are governed by the provisions of DoD Instruction 
5410.15.\2\
---------------------------------------------------------------------------

    \2, 3, 4\ See footnote 1 to Sec. 204.4(c)(1)(ii).
---------------------------------------------------------------------------

    (viii) Government-developed computer programs released to non-
Federal customers. Charges for software packages are governed by DoD 
Instruction 7930.2.\3\
    (ix) Pricing of performance by industrial fund activities which 
shall be in accordance with DoD Directive 7410.4.\4\
    (2) Charges may be waived or reduced when:
    (i) The recipient of the benefits is engaged in nonprofit activity 
designed for public safety, health, or welfare.
    (ii) Payment of the full fee by a state, local government, or 
nonprofit group would not be in the interest of the program.
    (iii) Furnishing of the service without charge is an appropriate 
courtesy to a foreign country or international organization, or 
comparable fees are set on a reciprocal basis with a foreign country.
    (iv) The incremental cost of collecting the fees would be an unduly 
large part of the receipts from the activity.

[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991; 63 FR 33248, June 18, 1998; 63 FR 36992, July 8, 1998]



Sec. 204.5  Responsibilities.

    Head of DoD Components, or designees, shall:
    (a) Identify each service or activity covered by this part.
    (b) Determine the extent of the special benefit provided.
    (c) Determine applicable cost and fair market value.
    (d) Establish appropriate charges and collect from recipients of 
special services.
    (e) Grant cost waivers or reductions consistent with guidance in 
this part.
    (f) Recommend to the Comptroller of the Department of Defense 
necessary additions and revisions to Sec. 204.10.

[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991]



Sec. 204.6  Charges and fees.

    (a) General. (1) All charges and fees shall be based on total cost 
to the U.S. Government or fair market value, whichever is higher. Total 
cost shall be based on actual cost or replacement cost when property is 
to be replaced and expense data accumulated in accordance with DoD 
7220.9-M.\5\ Estimates from the best available records may be used if 
actual cost or expense data is not available.
---------------------------------------------------------------------------

    \5-8\ See footnote 1 to Sec. 204.4(c)(1)(ii).
---------------------------------------------------------------------------

    (2) Cost accounting systems shall not be established solely for the 
purpose of determining charges, but the results of existing cost 
accounting systems shall be used. Total cost shall include all direct 
and indirect costs (see Chapter 71, DoD 7220.9-M).
    (3) Charges and fees established in advance must be projected to the 
midpoint of the future period. Projected amounts shall be reviewed 
annually or whenever significant changes in cost or value occur.
    (4) Internal management controls (see DoD Directive 5010.38 \6\ must 
be established to ensure that charges and fees are developed and 
adjusted, using current, accurate, and complete data, to provide 
reimbursement conforming to statutory requirements. Such controls also 
must ensure compliance with cash management and debt collection policies 
(see DoD Directive 7045.13\7\).
    (b) Services--(1) Basic requirements. The maximum charge for a 
special service shall be governed by its total cost or fair market 
value, whichever is higher, and not by the value of the service, to the 
recipient. The cost computation shall include the direct and indirect 
costs to the Government of

[[Page 365]]

carrying out the activity. Typically, a service may involve the 
following:
    (i) Civilian salaries or wages, including the full cost of benefits, 
such as leave, retirement, and medical and life insurance.
    (ii) The full cost of military personnel services, including 
retirement, other personnel support, leave, and permanent change of 
station factors.
    (iii) The cost of materials, supplies, travel expenses, 
communications, utilities, equipment and property rental, and 
maintenance of property and equipment.
    (iv) Depreciation expense and interest of investment (currently at a 
10 percent annual rate) (OMB Circular No. A-94) in DoD-owned, fixed 
assets.
    (v) Other operational, administrative, and accessorial (DoD 
Instruction 7510.4 \8\ costs incurred by the activity while estabishing 
standards and regulations and research in support of the service 
performed, for example.
    (2) Fees and rates. Fees and rates shall be based on actual costs. 
The charges for services provided by data processing activities shall be 
determined by using the costs accumulated pursuant to OMB Circular No. 
A-121 and Federal Government accounting Pamphlet No. 4 requirements. 
Fees and rates for recurring services shall be established in advance, 
when feasible. Recurring services include, but are not limited to, 
copying, certifying, and researching records, except when those services 
are excluded or exempted from charges under Sec. 204.4(c) or Sec. 
204.9.
    (3) DoD-wide fees and rates. Section 204.10 provides a schedule of 
fees and rates for certain services for use throughout the Department of 
Defense. Recommendations for additions and revisions to the schedule 
will be made to the Comptroller of the Department of Defense.
    (c) Lease or sale of property. Charges for lease or sale of property 
shall be based on a determination of fair market value.
    (1) In cases involving the lease or rental of military equipment, 
when there is no commercial counterpart, fair market value will be based 
on the computation of an annual rent which will be the sum of the annual 
depreciation plus interest on investment. The amount of interest on 
investment is determined by applying the interest rate to the net book 
value; that is, acquisition cost plus additions less depreciation. The 
current interest rate in OMB Circular No. A-94 shall be used. Support, 
if furnished, and applicable general administration expenses will be 
extra. In determining the value, consideration may be given to the 
responsibility of the lessee to assume the risk of loss or damage to the 
property and to hold the Government harmless against claims or 
liabilities by the lessee or third parties.
    (2) In cases involving the sale of property when there is no known 
fair market value, costs shall be based on the total of the standard 
price of the item carried in inventory, or the reduced price when so 
authorized for sale within the Department of Defense and the accessorial 
and administrative costs computed under DoD Instruction 7510.4.

[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991; 63 FR 33248, June 18, 1998; 63 FR 36992, July 8, 1998]



Sec. 204.7  Collections.

    (a) Collections of charges and fees shall be made in advance of 
rendering the service, except when preservation of life or property is 
involved, performance is authorized by law without advance payment, or 
advance payment is impractical because multiple requests for services 
are received on a continuing basis from a reliable requester (i.e., 
consistently prompt payments for services received). When an advance 
collection exception is approved, an accounts receivable will be 
established to control collections. The policies in DoD 7220.9-M, DoD 
Directive 5010.38, and DoD Directive 7045.13 shall be used in 
accounting, controlling, and managing cash and debt collections.
    (1) Collections of fees and charges normally will be deposited to 
Miscellanous Receipts of the Treasury unless otherwise authorized by law 
or regulation.
    (2) Collections for utilities and services in connection with the 
lease of property will be deposited to the appropriation or fund 
responsible for financing the operations of the equipment or facility.

[[Page 366]]



Sec. 204.8  Legislative proposals.

    In cases where collections of fees and charges for services or 
property are limited or restricted by provisions of existing law, the 
DoD Component(s) concerned will submit appropriate remedial legislative 
proposals under applicable legislative procedures. (See DoD Instruction 
5500.4.\9\
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 204.4(c)(1)(ii).

[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991; 63 FR 33248, June 18, 1998; 63 FR 36992, July 8, 1998]



Sec. 204.9  Examples of benefits not to be charged under provisions of 
Sec. 204.4(c)(4) of this part.

    (a) Services requested by members of the U.S. Armed Forces in their 
capacity as Service members.
    (b) Services requested by members of the U.S. Armed Forces who are 
in a casualty status, or requested by their next of kin or legal 
representative, or requested by any source, when it relates to a 
casualty.
    (c) The address of record of a member or former member of the U.S. 
Armed Forces when the address is available readily through a directory 
(locator) service, and when the address is requested by a member of the 
U.S. Armed Forces or by a relative or a legal representative of a member 
of the U.S. Armed Forces or when the address of record is requested by 
any source for the purpose of paying monies or forwarding property to a 
member or former member of the U.S. Armed Forces.
    (d) Services requested by or on behalf of a member or former member 
of the U.S. Armed Forces or, if deceased, his or her next of kin or 
legal representative that pertain to the following:
    (1) Information required to obtain financial benefits regardless of 
the terms of separation from the Service.
    (2) Document showing membership and military record in the Armed 
Forces if discharge or release was under honorable conditions, except as 
provided in paragraphs (1) and (2) of this section.
    (3) Information relating to a decoration or award or required for 
memorilization purposes.
    (4) Review or change in type of discharge or correction of records.
    (5) Personal documents, such as birth certificates, when such 
documents are required to be furnished by the member.
    (e) Services that are furnished free in accordance with statutes or 
executive orders.
    (f) Information from or copies of medical and dental records or X-
ray films of patients or former patients of military medical or dental 
facilities, when such information is required and requests for such data 
are (1) submitted by an accredited medical facility, physician, or 
dentist; or (2) requested by the patient, his or her next of kin, or 
legal representative.
    (g) Services involving confirmation of employment, disciplinary or 
other records, and salaries of active or separated civilian or military 
personnel, when requested by prospective employers or recognized sources 
of inquiry for credit or financial purposes.
    (h) Services requested by and furnished to a Member of Congress for 
official use.
    (i) Services requested by state, territorial, county, or municipal 
government, or an agency thereof, that is performing a function related 
to or furthering of a DoD objective.
    (j) Services requested by a court, when the service will serve as a 
substitute for personal court appearance of a military or civilian 
employee of the Department of Defense.
    (k) Services requested by a nonprofit organization that is 
performing a function related to or furthering an objective of the 
Federal Government or that is in the interest of public health and 
welfare, including education.
    (l) Services requested by an individual or corporation that is 
performing a function related to or furthering an objective of the 
Federal Government, when the cost of such services would be chargeable 
to a Federal Government contract or grant held by the individual or 
corporation.
    (m) Services requested by donors with respect to their gifts.
    (n) Requests for occasional and incidental services (including 
requests from residents of foreign countries), that are not requested 
often, when it is

[[Page 367]]

determined administratively that a fee would be inappropriate for the 
occasional and incidental services.
    (o) Requests from Federal employees for the completion of claims for 
reimbursement under the Federal Employees Health Benefit Act of 1959.
    (p) Administrative services provided by reference or reading rooms 
to inspect public records, excluding copies of records or documents 
furnished.
    (q) Requests for military locator service by financial organizations 
that are located on DoD installations.
    (r) Requests for military locator service by financial organizations 
that are engaged in the direct deposit program and that are not located 
on DoD installations. Requests for an address of record shall include 
the following:
    (1) A statement that the financial organization is listed as a 
direct deposit recipient in the current U.S. Treasury Bureau of 
Accounts, ``Financial Organizations Directory.''
    (2) A statement that the individual, whose address is being 
requested, has his or her pay forwarded as a direct deposit by a DoD 
disbursing officer.
    (3) The individual's financial organization's account number.
    (s) Services rendered in response to requests for classification 
review of DoD classified records, submitted under Executive Order 12065 
and implemented by 32 CFR part 159. Such services consist of the work 
performed in conducting the classification review or in granting and 
completing an appeal from a denial of declassification following such 
review.
    (t) Services of a humanitarian nature performed in such emergency 
situations as life-saving transportation for non-U.S. Armed Forces 
patients, search and rescue operations, and airlift of personnel and 
supplies to a disaster site. This does not mean that inter- and intra-
Governmental agreements to recover all or part of costs should not be 
negotiated. Rather, it means the recipient or beneficiary will not be 
assessed a ``user charge.''

[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991]



Sec. 204.10  Schedule of fees and rates.

    This schedule applies to authorized services related to copying, 
certifying, and searching records rendered to the public by DoD 
Components, except when those services are excluded or excepted from 
charges under subsection D.3. of the basic Instruction, or Sec. 204.9. 
Except as provided in special cases prescribed below, a minimum fee of 
$3.50 will be levied for processing any chargeable case. Normally only 
one copy of any record or document will be provided.

                           Requests Involving

    (a) Training and education (copies of documents required for other 
than official purposes):

 
                                                                  Fee
 
(1) Transcripts:
    First copy...............................................      $3.50
    Each additional copy (includes requests for transcripts          .45
     of graduation from military academies and schools)......
(2) Certificates:
    First copy...............................................       3.50
    Each additional copy (includes all requests for                  .45
     certificates, verification of attendance, and course
     completion from service schools and other facilities....
 

    (b) Medical and dental records of patients and former patients (when 
requested for purposes other than further medical treatment). Covers 
requests for information from or copies of medical records, including 
clinical records (inpatient records of military and non-military 
patients), health records (military outpatient records), outpatient 
records (non-Military outpatient records), dental records, and loan of 
x-rays.

(1) Searching and processing (per hour)...........................$13.25
 Minimum charge.....................................................8.30
(2) Each typewritten page...........................................3.50
(3) Office copy reproductions (per image)...........................0.10
(4) Copy or loan of each x-ray......................................8.50

    (c) Military membership and record (excluding medical and dental 
records).

(1) Address of record, each........................................$3.50

    (2) Copies of releasable military personnel records (e.g., 
effectiveness reports for officers and enlisted personnel) reproduced 
for the personal use

[[Page 368]]

of active, retired, and former members, next of kin of missing-in-action 
or deceased members of the Armed Forces.

Minimum charge (up to six reproduced images).......................$3.50
Each additional image.................................................10
Statement of verification of Service or report of separation for 
individusls with other than honorable discharges....................5.20

    (d) Photography--(1) Still pictorial or documentary photographic 
prints. Unlisted standard sizes of prints may be furnished, if 
available, at prevailing contract or activity rates.

------------------------------------------------------------------------
                                          Price per print (quantity)
                                     -----------------------------------
                                                10 to    21 to
                                       1 to 9     20       50      50+
------------------------------------------------------------------------
Single weight (RC type) paper:
    8x10......    $4.50    $3.25    $2.50    $1.75
    11x14.....     9.00     7.00     5.00     4.00
    16x20.....    19.00    15.00    12.00     9.50
    20x24.....    30.00    25.00    20.00    15.00
Single weight color paper:
    8x10......    11.00     7.50     3.50     3.00
    11x14.....    17.00     9.00     6.50     5.50
    16x20.....    35.00    25.00    14.00    11.50
35mm color transparency slide made       5.00     3.50     3.00     3.00
 from color negative................
35mm duplicate from 35mm slide......     1.00      .60      .50      .45
Print mounted on 16x20 cardboard + unit price of
 print..............................
Print mounted on 20x24 cardboard + unit price of
 print..............................
Color transparencies (first); 16.00
 each additional:
    8x10......    20.00  .......  .......  .......
    4x5.......     4.50  .......  .......  .......
    4x5 B&W        2.00  .......  .......  .......
     negative.......................
    70mm color negative.............     7.50  .......  .......  .......
------------------------------------------------------------------------

    Note: Prices may vary by 20% of these average charges based on local 
inhouse labor, equipment, and supply (raw stock) costs.
    (2) Motion Picture:

------------------------------------------------------------------------
                                                              Price per
                                                                 foot
                                                               contact
------------------------------------------------------------------------
Color:
    16mm work print (positive work print from an original          $0.20
     negative).............................................
    16mm reversal work print...............................          .20
    16mm color master (``A'' roll).........................          .60
    16mm duplicate negative (from master positive).........          .60
    16mm reversal duplicate negative.......................          .85
    16mm internegative (from reversal original)............          .70
    16mm short rolls (under 100 ft) + basic price..........          .10
    16mm tab-to-tab printing + basic price.................          .20
Black and white:
    16mm work print (negative/positive)....................          .10
    16mm master positive (fine grain)......................          .25
    16mm duplicate negative................................          .25
    16mm short rolls (under 200 ft) + basic price..........          .10
    16mm tab-to-tab printing + basic price.................          .10
------------------------------------------------------------------------

    (3) Miscellaneous:

Magnetic tape--dub from 16mm film + raw stock.....................$65.00
Searching (per hour or fraction thereof)...........................18.00
Minimum charge per film order (including search)...................35.00
16mm film to videotape (broadcast quality tape format per hour) + raw 
stock.............................................................275.00
Minimum charge for film to videotape transfer + raw stock.........140.00


Aerial photographic print processing prices will be determined by the 
local DoD-operated lab due to limited availability.
    35mm film processing for motion pictures is not done in-house by the 
DoD. Charges for this type of processing will be at prevailing contract 
rates on a case-by-case basis.
    (e) Construction and engineering information. Copies of aerial 
photograph maps, specifications, permits, charts, blueprints, and other 
technical engineering documents.

(1) Searching, per hour or fraction thereof (including overhead costs) 
                                                                  $13.25
(2) First print.....................................................2.50
(3) Each additional print of same document..........................0.85

    (f) Copies of medical articles and illustrations. Standards 
contained in the basic Instruction will be utilized in computing costs.
    (g) Claims, litigation. Copies of documents required for other than 
official purposes. (Includes court-martial records furnishing 
information from Report of Claims Investigations; e.g., automobile 
collision investigations and safety reports.) Requests pertaining to 
private litigation and to cases in which the United States is a party 
and where court rules provide for reproduction of records without cost 
to the Government (if not covered in 2. or 3., above).


[[Page 369]]


(1) Searching and processing (per hour)...........................$13.25
Minimum charge......................................................8.30

    Note: Charges for professional search or research will be made in 
accordance with 10.b., below.

(2) Office copy reproduction (minimum for six pages or less).......$3.50
(3) Each additional image...........................................0.10
(4) Certification and validation with seal, each....................5.20

    (h) Publications and forms. A search and/or processing fees, as 
described in 10.a., below, will be made for requests requiring extensive 
time (one hour or more).
    (1) Shelf stock. (Requesters may be furnished more than one copy of 
publication or form if it does not deplete stock levels below projected 
planned usage.)

(i) Minimum fee per request (six pages or less)....................$3.50

    Plus:

(A) Form, per copy..................................................$.10
(B) Publications, per printed page....................................02
(C) Microfiche, per fiche.............................................10

    (ii) (Examples: Cost of 20 forms, $5.50; cost of a publication with 
100 pages, $5.50; cost of microfiche publication consisting of 10 
fiches, $4.50)
    (2) Office copy reproduction (when shelf stock is not available):

(i) Minimum fee per request (six pages or less)....................$3.50
(ii) Each additional page.............................................10
(iii) Minimum charge first fiche....................................8.70
(iv) Each additional fiche............................................20

    (i) Engineering data (microfilm)--(1) Aperture cards.

(i) Silver duplicate negative, per card............................$0.75
When keypunched and verified, per card................................85
(ii) Diazo duplicate negative, per card...............................65
When keypunched and verified, per card................................75
(2) 35mm roll film, per frame.......................................0.50
(3) 16mm roll film, per frame.......................................0.45
(4) Paper prints (engineering drawings), each.......................1.50
(5) Paper reprints of microfilm indices, each.......................0.10

    (j) General. Charges for any additional services not specifically 
provided above, consistent with the provisions of the basic Instruction, 
will be made by the respective DoD Components at the following rates:

(1) Clerical search and processing, per hour......................$13.25
Minimum charge......................................................8.30
(2) Professional search or researching (To be established at actual 
hourly rate prior to search. A minimum charge will be established at \1/
2\-hourly rates.).......................................................
(3) Minimum charge for office copy reproduction (up to six images) 
                                                                    3.50
(4) Each additional image...........................................0.10
(5) Each typewritten page...........................................3.50
(6) Certification and validation with seal, each....................5.20
(7) Hand-drawn plots and sketches, each hour or fraction thereof...12.00

[51 FR 16024, Apr. 23, 1986. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991]



PART 205_END USE CERTIFICATES (EUCs)--Table of Contents




Sec.
205.1 Purpose.
205.2 Applicability.
205.3 Definitions.
205.4 Background and policy.
205.5 Responsibilities.
205.6 Procedures.

    Authority: 10 U.S.C. 131.

    Source: 56 FR 64194, Dec. 9, 1991, unless otherwise noted.



Sec. 205.1  Purpose.

    This part:
    (a) Supersedes the Deputy Secretary of Defense Memorandum, ``End Use 
Certificates,'' April 9, 1991.
    (b) Establishes policies, assigns responsibilities, and prescribes 
procedures for signing EUCs on foreign defense items.



Sec. 205.2  Applicability.

    This part applies to the Office of the Secretary of Defense; the 
Military Departments; the Chairman of the Joint Chiefs of Staff and the 
Joint Staff; the Unified and Specified Commands; the Office of the 
Inspector General, Department of Defense; the Defense Agencies; and the 
DoD Field Activities (hereafter referred to collectively as ``DoD 
Components'').

[[Page 370]]



Sec. 205.3  Definitions.

    (a) End Use Certificate (EUC). For the purposes of this part, a 
written agreement in connection with the transfer of military equipment 
or technical data to the United States that restricts the use or 
transfer of that item by the United States.
    (b) Use for defense purposes. Includes direct use by or for the U.S. 
Government in any part of the world and transfer by means of grant aid, 
International Military Education and Training (IMET) programs, Foreign 
Military Sales (FMS), and other security assistance and armaments 
cooperation authorities.



Sec. 205.4  Background and policy.

    This part is intended to authorize the execution of EUCs when such a 
certificate is necessary to facilitate purchases of foreign products 
when the purchase of such products is in the best interest of the United 
States.
    (a) The Military Departments and other DoD Components purchase 
products produced by allies and friendly countries and participate in 
cooperative development programs to promote interoperability, 
standardization, and an expanded procurement base, and to obtain 
products that best meet U.S. needs at the lowest cost.
    (b) U.S. worldwide security responsibilities are extensive and 
recognition of these special circumstances has resulted in long-time 
acceptance in international agreements, by allies and friends, of the 
need for flexibility in the authorized uses or transfer of purchased or 
co-developed articles and data. In various circumstances, international 
agreements have recognized that permissible use of an item or data for 
U.S. ``defense purposes'' as defined in Sec. 205.3(b).
    (c) Consistent with paragraphs (a) and (b) of this section, DoD 
Components may sign EUCs, in accordance with the policy and procedures 
outlined below. While most EUCs requested by foreign governments use 
general language, their effects may be divided into three categories, as 
described in the following paragraphs. Authority to approve their 
execution is limited as follows:
    (1) Category I. Secretaries of the Military Departments and 
Directors of Defense Agencies may authorize EUCs:
    (i) For acquisition of items classified for security purposes by a 
foreign government.
    (ii) For the acquisition of items covered by the nonproliferation 
agreements to which the United States is a party, such as missile 
technology, or
    (iii) That permit the item to be ``used for defense purposes'' as 
defined in Sec. 205.3(b), by the United States.
    (2) Category II. EUCs that are not Category I or III are Category 
II. Secretaries of the Military Departments and Directors of Defense 
Agencies may authorize Category II EUCs only after a determination is 
made through the coordination procedures set forth in Sec. 205.6(a)(1) 
that, notwithstanding the use or transfer limitations, the purchase is 
in the U.S. national interest. The least restrictive provisions possible 
should be negotiated.
    (3) Category III. Secretaries of Military Departments and Directors 
of Defense Agencies may not authorize the signature of EUCs which limit 
the right:
    (i) For use by or for the U.S. Government in any part of the world, 
or
    (ii) To provide the item to allies engaged together with the United 
States in armed conflict with a common enemy. Waivers to this 
prohibition may be granted by the Under Secretary of Defense 
(Acquisition) (USD(A)). Procedures for requesting such waivers are at 
Sec. 205.6(a)(1).



Sec. 205.5  Responsibilities.

    (a) The Under Secretary of Defense (Acquisition) shall:
    (1) Monitor compliance with this part.
    (2) Develop procedures to ensure timely review of Category II and 
III items with the Under Secretary of Defense for Policy (USD(P)).
    (3) Upon obtaining the concurrence of the USD(P), waive the 
restrictions in Sec. 205.4(c)(3) when purchase of the item is in the 
national interest.
    (4) When requested, and in coordination with the USD(P), assist the 
Military Departments and Defense Agencies in negotiating the elimination 
or

[[Page 371]]

amelioration of an EUC's restrictive language.
    (b) The Under Secretary of Defense for Policy shall:
    (1) Consult with the USD(A) on waivers authorized by this part and, 
if appropriate, coordinate with the Department of State.
    (2) When requested, and in coordination with the USD(A), assist the 
Military Departments and Defense Agencies in negotiating the elimination 
or amelioration of the EUC's restrictive language.
    (3) Develop procedures for coordination and review of EUC's 
internally and with the Department of State.
    (4) Establish, with the concurrence of the USD(A), specific 
acceptable end use restrictions in addition to those set forth in 
Category I, which shall be added immediately to Category I and a 
corresponding administrative change made to Sec. 205.4(c)(1).
    (c) The Secretaries of the Military Departments and the Directors of 
the Defense Agencies shall:
    (1) Authorize the execution of Category I and II EUCs in accordance 
with the procedures outlined in Sec. 205.6. This responsibility may not 
be delegated by the Directors of Defense Agencies; it may be delegated 
by Secretaries of the Military Departments to civilian officers of their 
respective departments appointed by the President with the advice and 
consent of the Senate. Once EUC execution is authorized, the Director of 
a Defense Agency, or Military Department civilian official who has been 
delegated authorization authority may delegate the authority to sign 
individual EUCs.
    (2) Establish procedures to ensure compliance with this part. These 
procedures should ensure compliance, for the life of the purchased item, 
with the transfer or use restrictions agreed to in signing an EUC. They 
should also ensure 21-calendar day notification to USD(A) before 
authorizing the execution of a Category II EUC.



Sec. 205.6  Procedures.

    (a) Procedures for the three categories of EUCs established in Sec. 
205.4(c) are:
    (1) Category I. Secretaries of the Military Departments and 
Directors of Defense Agencies may authorize Category I EUCs.
    (2) Category II. Not less than 21 calendar days before authorizing 
the execution of a Category II EUC, Military Departments and Defense 
Agencies shall provide notification to the USD(A). The notification will 
contain a description of the item and the limitations to be imposed by 
the exporting government. The USD(A) shall coordinate with the USD(P), 
providing at least 14 days for review. If appropriate, the USD(P) shall 
coordinate with the Department of State. The USD(A) shall notify the 
submitting DoD Component of any further action required before final 
authorization of the EUC; otherwise, concurrence may be assumed after 
expiration of the 21-day period.
    (3) Category III. To acquire an item requiring a Category III EUC, 
the Secretary of a Military Department or Director of a Defense Agency 
must request a waiver from the USD(A). Requests for waivers should 
specify:
    (i) Why it is in the interest of the U.S. Government to procure the 
item.
    (ii) The limitations to be imposed by the exporting government and a 
justification for acceptance of those limitations by the U.S. 
Government.
    (iii) A statement that no satisfactory alternative to the item, 
considering cost, schedule, or operational requirements, is available 
from domestic or foreign sources without equivalent limitations.

The USD(A) shall coordinate the waiver with the USD(P), who, if 
appropriate, shall then coordinate with the Department of State. USD(A) 
shall notify the submitting DoD Component of the results.
    (b) Copies of signed EUCs of all three categories shall be provided 
promptly to USD(A).
    (c) A record of any waivers or modifications of this policy shall be 
maintained by the USD(A).



PART 206_NATIONAL SECURITY EDUCATION PROGRAM (NSEP) GRANTS TO 
INSTITUTIONS OF HIGHER EDUCATION--Table of Contents




Sec.
206.1 Major characteristics of the NSEP institutional grants program.

[[Page 372]]

206.2 Eligibility.
206.3 Overall program emphasis.
206.4 Proposal development and review.
206.5 Final proposal process.

    Authority: 20 U.S.C. 1141(a).

    Source: 59 FR 26116, May 19, 1994, unless otherwise noted.



Sec. 206.1  Major characteristics of the NSEP institutional grants 
program.

    (a) The Institutional Grants Program provides support in the form of 
grants to U.S. institutions of higher education. During the 1994-95 and 
1995-96 academic years, a program of pilot grants is being initiated 
with an annual competition for grants held during the spring of each 
year. Grants to institutions will complement NSEP scholarship and 
fellowship programs. NSEP encourages the development of programs and 
curricula which:
    (1) Improves the quality and infrastructure of international 
education;
    (2) Addresses issues of national capacity; and
    (3) Defines innovative approaches to issues not addressed by NSEP 
scholarship and fellowship programs.
    (b) The NSEP Grants Program is designed to address a number of 
important objectives critical to the United States:
    (1) To equip Americans with an understanding of less commonly taught 
languages and cultures and enable them to become integrally involved in 
global issues.
    (2) To build a critical base of future leaders in the marketplace 
and in government service who have cultivated international 
relationships and worked and studied along-side foreign experts.
    (3) To develop a cadre of professionals with more than the 
traditional knowledge of language and culture who can use this ability 
to help the U.S. make sound decisions and deal effectively with global 
issues; and
    (4) To enhance institutional capacity and increase the number of 
faculty who can educate U.S. citizens toward achieving these goals.
    (c) Grants will be awarded for initial 1- or 2-year periods. 
Potential follow-on commitments will be based on a rigorous evaluation 
and assessment process. Between 15 and 25 awards are expected to be made 
in the first year ranging from approximately $25,000 to $250,000. These 
are only estimates and do not bind the NSEP to a specific number of 
grants or to the amount of the grant.
    (d) The following key characteristics will be emphasized in the NSEP 
Institutional Grants Program:
    (1) Programmatic in emphasis. The purpose of the grants is to 
address weaknesses and gaps in programs and curricula. The grants should 
be used to strengthen the national capacity in international education. 
While ``operational'' support for already existing centers and projects 
may be a component of a grant, NSEP emphasizes commitment of its limited 
resources to projects that establish and improve educational programs 
available to students and teachers.
    (2) Demand and requirements oriented. Grants are designed to address 
national needs. These needs must be clearly articulated and defended in 
a grant proposal. It must be clear that the following questions are 
addressed:
    (i) Who will benefit from the program funded by the grant?
    (ii) What need does the program address?
    (iii) How will this program augment the capacity of the Federal 
Government or of the field of education in areas consistent with the 
objectives of the NSEP? How does it fit the national requirement?
    (3) Cooperation and collaboration among institutions is mandated in 
order to ensure that a wider cross-section of colleges and universities 
benefit from a program funded under NSEP. NSEP is committed to providing 
opportunities to the widest cross-section of the higher education 
population as is feasible. Cooperation can be in the form of formal 
consortia arrangements or less formal but equally effective agreements 
among institutions. Both vertical (among different types of 
institutions) and horizontal (among similar institutions across 
functional areas) integration are encouraged. Outreach to institutions 
that do not normally benefit from such programs is also strongly 
favored.
    (4) Complementary to other Federal programs such as Title VI of the 
Higher Education Act. NSEP is designed to

[[Page 373]]

address gaps and shortfalls in Higher Education and to build and expand 
national capacity. NSEP recognizes that base capacity currently exists 
in some foreign languages and area studies. It also recognizes that 
funding shortfalls and other factors have contributed to tremendous gaps 
and weaknesses. Funding for expansion of the international education 
infrastructure remains limited. Duplication of effort is not affordable. 
NSEP encourages new initiatives as well as expansion of existing 
programs to increase supply in cases where the demand cannot be met and 
encourages efforts that increase demand.
    (5) NSEP encourages proposals that address two categories of issues 
relating to the mission of NSEP:
    (i) Programs in specific foreign languages, countries or areas; and/
or
    (ii) Programs addressing professional, disciplinary and/or 
interdisciplinary opportunities involving international education.
    (6) NSEP views student funding as portable and hopes that 
universities will develop ways to move students to programs and to 
provide credit with these programs. NSEP believes that programs need to 
be developed that are available to a wider cross-section of students. 
Thus, they need to be ``open'' to students from other institutions. 
Programs might also be ``transportable'' from one institution to 
another.
    (7) NSEP emphasizes leveraging of funds and cost-sharing in order to 
maximize the impact of NSEP funding. It encourages institutions to seek 
other sources of funding to leverage against NSEP funding and to commit 
institutional resources in support of the program as well. NSEP also 
emphasizes burden sharing between the institution and the Program. NSEP 
encourages institutions to demonstrate a commitment to international 
education and to present a plan for how funding for the proposed program 
will be achieved over a 3-5 year period so that NSEP can reduce its 
financial commitment to programs. The funds requested from NSEP should 
minimize costs allocated to unassigned institutional ``overhead.'' NSEP 
institutional grants are assumed to be for training programs. 
Consequently, university/college indirect costs associated with training 
programs should be used as a general benchmark for determining 
appropriate overhead rates.
    (8) NSEP encourages creativity and is responsive to the needs of 
higher education to expand the capacity to provide more opportunities 
for quality international education. We do not suggest that the 
guidelines presented in the grant solicitation will cover all problems 
and issues. Quite to the contrary, we encourage careful consideration of 
issues confronting international education in the U.S. and thoughtful 
proposals that address these issues, consistent with the overall mission 
of the NSEP.



Sec. 206.2  Eligibility.

    Any accredited U.S. institution of higher education, as defined by 
section 1201(a) of the Higher Education Act of 1965 (20 U.S.C. 1141(a)), 
may apply for and receive a grant. This includes 2- and 4-year colleges 
and universities, both public and private. Other organizations, 
associations, and agencies may be included in proposals but may not be 
direct recipients of a grant. Foreign institutions may also be included 
in a proposal but may not be direct recipients of a grant. Only U.S. 
citizens and U.S. institutions may receive funds through a grant awarded 
by the NSEP.



Sec. 206.3  Overall program emphasis.

    (a) The NSEP grants to institutions program focuses on two broad 
program areas that reflect the challenges to building the infrastructure 
for international education in U.S. higher education:
    (1) Development and expansion to quality programs in overseas 
locations.
    (i) Programs that offer important opportunities for U.S. students, 
both undergraduate and graduate, to study in critical areas under-
represented by U.S. students, and
    (ii) Development of meaningful competencies in foreign languages and 
cultures.
    (2) Development and implementation of programs and curricula on U.S. 
campuses that provide more opportunities for study of foreign languages 
and cultures and the integration of these studies into overall programs 
of study.

[[Page 374]]

    (b) Addressing the need for improving study abroad infrastructure. 
The NSEP encourages the study of foreign cultures and languages 
typically neglected or under-represented in higher education. In the 
foreign language field these are generally referred to as less commonly 
taught languages. In area studies, these are generally defined as non-
Western European in focus. An integral part of any student's 
international education is a quality study abroad experience that 
includes a significant portion devoted to gaining functional competence 
in an indigenous language and culture. Unfortunately, there are only 
limited opportunities to study abroad in many foreign areas. In 
addition, many programs lack a quality foreign language component as 
well as significantly experiential components. Historically, more 
attention has been paid to the development of programs in Western Europe 
where the student demand has been greater. NSEP hopes to encourage, 
through institutional grants, the development and/or expansion of 
infrastructure for study abroad in critical areas of the world where 
capacity does not currently exist. Programs are encouraged that:
    (1) Expand program opportunities in critical countries where limited 
opportunities currently exist.
    (2) Establish program opportunities in critical countries where no 
opportunities exist.
    (3) Enhance meaningful opportunities for foreign language and 
foreign culture acquisition in conjunction with study abroad.
    (4) Create and expand study abroad opportunities for students from 
diverse disciplines. In all cases, grants to develop study abroad 
infrastructure must address issues of demand (how to increase demand for 
study in the proposed countries or regions) and diversity (how to 
attract a diverse student population to study in the proposed countries 
or regions). Grants may support start-up of programs or the expansion of 
a program's capacity to benefit more and/or different student or to 
improve the quality of study abroad instruction. Proposals can address 
issues concerning either or both issues of undergraduate and graduate 
education.
    (c) Addressing the infrastructure for international education in 
U.S. higher education. While studying abroad is an integral part of 
becoming more proficient in one's understanding of another culture and 
in becoming more functionally competent in another language, the NSEP 
also emphasizes the development and expansion of programs that address 
serious shortfalls that provide a stronger domestic program base in 
areas consistent with the NSEP mission. The NSEP encourages grant 
proposals that address infrastructure issues. While not limited to these 
areas, programs might address the following issues:
    (1) Enhancing foreign language skill acquisition through innovative 
curriculum development efforts. Such efforts may involve intensive 
language study designed for different types of students. Less 
traditional approaches should be considered as well as ways to provide 
foreign language instruction for the student who may not otherwise have 
an opportunity to pursue such instruction. Functional competency should 
be stressed but defined as meaningful for the particular discipline or 
field.
    (2) Expanding opportunities for international education in diverse 
disciplines and fields and in issues that are cross-area or cross-
national in character. Efforts are encouraged that offer opportunities 
for meaningful international education for those in fields where 
opportunities are not generally available. There are many fields and 
disciplines that are rapidly becoming international in scope, yet the 
educational process does not include a meaningful international 
component. In many cases this is due to a rigid structure in the field 
itself that cannot accommodate additional requirements, such as language 
and culture study. There are also issues that involve cross-area or 
cross-national education or are studied in comparative terms. Students 
in these areas also need quality opportunities in international 
education.
    (3) Provide opportunities for programmatic studies throughout an 
undergraduate or graduate career. Students frequently study a foreign 
language or pursue study abroad opportunities as adjuncts to their 
overall program of study. Innovations in curriculum are

[[Page 375]]

needed to more thoroughly integrate aspects of international education 
into curriculum throughout a student's undergraduate or graduate career. 
The NSEP encourages institutions to address these overall international 
education curriculum issues in their proposals.
    (4) Provide opportunities to increase demand for study of foreign 
areas and languages. Efforts to develop educational programs that offer 
innovative approaches to increasing demand to include a meaningful 
international component are encouraged. Proposals are encouraged to 
address issues of diversity: how to attract students who have 
historically not pursued opportunities involving international 
education. Diversity includes geographical, racial, ethnic, and gender 
factors.
    (5) Improve faculty credentials in international education. Efforts 
to create more opportunities for teachers to become competent in foreign 
cultures and languages are encouraged. While NSEP is a higher education 
program, it is interested in the potential dynamics of collaborative 
efforts that recognize the shared responsibility of all educational 
levels for promoting international education.
    (6) Uses of new technologies. During the last decade tremendous 
advances have been made in the application of new educational 
technologies. Such technologies have enhanced our capacity to improve 
instruction, broaden access, and assess student learning. NSEP's 
objective is not to support large technology oriented projects. However, 
NSEP encourages efforts that integrate innovative uses of technology 
emphasizing how proposed programs will have significance beyond a local 
setting. Proposals that include proposed uses of technology will be 
required to demonstrate detailed knowledge of the technology, how it is 
to be developed and applied and how student learning will be impacted.



Sec. 206.4  Proposal development and review.

    The purpose of this section is to explain the NSEP review process. 
[Note: A number of important approaches to proposal development and 
review have been adapted from guidelines developed by the Department of 
Education's Office of Postsecondary Education for its ``Fund for the 
Improvement of Postsecondary Education (FIPSE)''.] This information if 
intended to aid institutions in the development of proposals and to 
provide guidance concerning the criteria that may be used in reviewing 
and evaluating proposals.
    (a) The grants to institutions program will be administered by the 
National Security Education Program Office (NSEPO). However, the NSEPO 
will function as an administrative office much in the same manner as the 
Institute of International Education and the Academy for Educational 
Development function in administering NSEP scholarship and fellowship 
programs, respectively. The NSEPO will not review or evaluate proposals. 
The proposals will be reviewed and evaluated by national screening 
panels.
    (b) The NSEP will use a two-stage review process in order to 
evaluate a broad range of proposal ideas. In the first stage, applicants 
will submit a five-page summary (double-spaced) of their proposal. An 
institution may submit more than one proposal, but each proposal should 
be submitted and will be evaluated separately and independently.
    (c) NSEP expects competition for grants to be intense. By 
implementing a two-stage process, potential grantees are given an 
opportunity to present their ideas without creating a paperwork burden 
on both the proposal authors and the reviewers.
    (d) The preliminary review process. The review of preliminary 
proposals will be undertaken by panels of external reviewers, not 
members of the NSEPO. Panels of not less than three will be assembled to 
review preliminary proposals. Panel members will be drawn primarily from 
faculty and administration in higher education but might also include 
representatives from the research, business, and government communities. 
Every effort will be made to ensure balance (geographical, ethnic, 
gender, institutional type, subject matter) across the entire 
competition.
    (e) Panel members will reflect the nature of the grants program. 
Each panel will include a recognized expert in a field of international 
education.

[[Page 376]]

Other panelists may include experts in area studies, foreign language 
education, and other fields and disciplines with an international focus.
    (f) Preliminary proposals will be reviewed according to a set of 
criteria developed in consultation with representatives from higher 
education, and provided to the panels. The applicant shall, at a 
minimum, deal with the following issues in the preliminary proposal:
    (1) How the proposal addresses issues of national capacity in 
international education.
    (2) What area(s), language(s), and discipline(s) the proposal 
addresses and the importance of these to U.S. national capacity.
    (3) What the applicant is proposing to do.
    (4) How the proposal deals with the key characteristics of the NSEP.
    (5) Demonstration of thorough knowledge of the state of the art in 
the particular area of the proposal and how this proposal develops or 
builds capacity, not duplicates existing capacity.
    (g) The applicant must also include a budget estimate. This budget 
estimate, for the first year of the proposal, must include the 
following:
    (1) A summary of anticipated direct costs including professional 
salaries, funds for students, travel, materials and supplies, 
consultants, etc., and how or why these costs are needed.
    (2) An estimate of institutional indirect costs. The budget estimate 
must also indicate whether funding is also being requested for a second 
year and, if so, an estimate of the amount to be requested.
    (h) Panelists will review and rank proposals and forward their 
recommendations to the NSEPO. NSEPO will review and analyze these 
recommendations and inform all applicants of decisions.



Sec. 206.5  Final proposal process.

    NSEPO will provide detailed comments on proposals to all applicants 
who are invited to prepare a final proposal.
    (a) Final proposals should be limited to no more than 25 double-
spaced pages. Proposals will be reviewed by national panels constructed 
similarly to those designed to review preliminary proposals. In addition 
to a field review process, panelists will be assembled in Washington 
D.C. to discuss and review the independent and competing merits of 
proposals.
    (b) Proposals will be evaluated in two basic categories:
    (1) Proposals that address study abroad infrastructure and
    (2) Proposals that address domestic infrastructure. Should proposals 
deal with both of these issues, they will be evaluated in a third 
category. This grouping of proposals will ensure that all categories of 
proposals receive funding consideration.
    (c) In general, final proposals will be considered on the following 
selection criteria:
    (1) Importance of the problem. Each proposal will be evaluated 
according to the merit of how it addresses issue(s) of national 
capacity. The proposal must articulate the importance of the problem it 
addresses, how the proposal addresses issues of national capacity in 
international education, and how it is consistent with the objectives of 
the NSEP.
    (2) Importance of proposed foreign language(s), foreign area(s), 
field(s) or discipline(s). The proposal will be evaluated according to 
how well it articulates the need for programs in the proposed areas, 
languages, fields, or disciplines.
    (3) Identification of need and gaps/shortfalls. The proposal will be 
evaluated according to its persuasiveness in identifying where the needs 
exist and where serious shortfalls exist in the capacity to fill the 
need. The proposal should clearly identify why these gaps exist and 
provide a strong indication of familiarity with the state of the field 
in the proposal area.
    (4) Cost effectiveness. Proposals will be evaluated on the basis of 
``educational value for the dollar.'' NSEP is interested in funding 
proposals in areas where other funding is limited or in areas where NSEP 
funding can significantly augment or complement other sources. NSEP is 
not interested in replacing funds available from other sources or in 
duplicating other efforts. Also, NSEP is interested in projects whose 
dollar levels and long-range

[[Page 377]]

budget plans provide for realistic continuation by the grantee 
institution and adaptation by other institutions. NSEP is interested in 
proposed approaches to leveraging other funds against the proposed 
project.
    (5) Evaluation plans. Proposals will be evaluated on their approach 
to measuring impact. What impact will the proposed program have on 
national capacity? How will the proposed program deal with assessing 
language and foreign cultural competency? In the case of study abroad 
programs, how will the success and impact of study abroad experiences be 
assessed. Proposals should not defer the consideration of these issues 
to a latter stage of the effort. Evaluation and assessment should be an 
integral part of the entire proposal effort.
    (6) Prospects for wider impact. Proposals must address national 
needs and will be evaluated according to how well they are likely to 
address these needs. What component of the higher education community 
does the proposal address? How diverse a student population will the 
proposed program address? What applications to other institutions will 
be made available, either directly or indirectly, because of the 
proposed program?
    (7) Capacity and commitment of the applicant. The proposal will be 
evaluated according to the evidence provided on the commitment of the 
institution, and other institutions, to the proposed project. What other 
institutions are involved and what is their commitment. If there are 
commitments from foreign institutions, what is the evidence of this 
commitment? Are their plans for the institution to integrate the efforts 
of the proposed program into the educational process? What plans are 
there for eventual self-support? As with many other similar programs, 
NSEP is particularly interested in the degree to which the institution 
is willing to bear a reasonable share of the direct and indirect costs 
of the proposed project.
    (d) Applicants should also indicate if they currently receive or are 
seeking support from other sources. Applicants should indicate why 
support from NSEP is appropriate, if other sources are also being 
sought.



PART 207_IMPLEMENTATION OF SECTION 740 OF THE WENDELL H. FORD AVIATION 

INVESTMENT AND REFORM ACT FOR THE 21ST CENTURY AS AMENDED BY SECTION 
1051 OF THE NATIONAL 
DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2003--Table of Contents




Sec.
207.1 Background and purpose.
207.2 Applicability.
207.3 Restrictions.
207.4 Qualifications.
207.5 Sale procedures.
207.6 Reutilization and transfer procedures.
207.7 Reporting requirements.
207.8 Expiration.

    Authority: Section 740 of Public Law 106-181, 114 STAT. 173 as 
amended by Section 1051 of Public Law 107-314, 116 STAT. 2648.

    Source: 68 FR 27905, May 22, 2003, unless otherwise noted.

    Effective Date Note: At 68 FR 27905, May 22, 2003, part 207 was 
added, effective May 22, 2003, until Sept. 30, 2006.



Sec. 207.1  Background and purpose.

    Section 740 of the Wendell H. Ford Aviation Investment and Reform 
Act for the 21st Century, as amended, allows the Department of Defense 
(DoD), during the period 4 April 2000 through 30 September 2006, to sell 
aircraft and aircraft parts to a person or entity that provides oil 
spill response services (including the application of oil dispersants by 
air). This part implements that section.



Sec. 207.2  Applicability.

    The sections in this part apply to the sale of aircraft and aircraft 
parts determined to be DoD excess under the definition of the Federal 
Property Management Regulations (FPMR) or the Federal Management 
Regulation (FMR), and listed in Attachment 1 of Chapter 4 of DoD 
4160.21-M (August 1997) \1\ as Category A aircraft authorized for 
commercial use, to contractors providing oil spill response services.
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    \1\ Copies may be obtained via Internet at http://www.dla.mil/dlaps/
dod/41602lm/guide.asp.

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[[Page 378]]



Sec. 207.3  Restrictions.

    (a) Aircraft and aircraft parts sold under the Act shall be used 
primarily for oil spill spotting, observation, and dispersant delivery, 
and may not have a secondary purpose that interferes with oil spill 
response efforts under an oil spill response plan. Use for a secondary 
purpose requires the prior written approval of the Secretary of Defense 
and the Secretary of Transportation, and a certificate from the Federal 
Aviation Administration, to be obtained in advance, for the proposed 
secondary use.
    (b) Aircraft may not be flown outside of or removed from the U.S. 
except for the purpose of fulfilling an international agreement to 
assist in oil spill dispersing efforts, for immediate response efforts 
for an oil spill outside United States waters that has the potential to 
threaten United States waters, or for purposes that are jointly approved 
by the Secretary of Defense and the Secretary of Transportation.
    (c) The DoD sale of aircraft and aircraft parts sold under the Act 
shall not extend past the time limits of the Act.



Sec. 207.4  Qualifications.

    The Secretary of Transportation must certify in writing to the 
Secretary of Defense prior to sale that the person or entity is capable 
of meeting the terms and conditions of a contract to perform oil spill 
response services by air, and that the overall system to be employed by 
the person or entity for the delivery and application of oil spill 
dispersants has been sufficiently tested to ensure that the person or 
entity is capable of participating in an oil spill response plan that 
has been approved by the Secretary of the Department in which the Coast 
Guard is operating.
    (a) Prior to sales offerings of aircraft or aircraft parts, the U.S. 
Department of Transportation (DoT) must provide to the Defense 
Reutilization and Marketing Service (DRMS), in writing, a list or 
persons or entities eligible to bid under this Act, including expiration 
date of each DOT contract, and locations covered by the DOT contract.
    (b) This requirement may not be delegated to the U.S. Coast Guard 
(USCG).



Sec. 207.5  Sale procedures.

    Sale of aircraft and aircraft parts must be in accordance with the 
provisions of Chapter 4 of DoD 4160.21-M (August 1997), paragraph B 2, 
and with other pertinent parts of this manual, with the following 
changes and additions:
    (a) Sales shall be limited to the aircraft types listed in 
Attachment 1 of Chapter 4 of DoD 4160.21-M (August 1997), and parts 
thereto.
    (b) Sales shall be made at fair market value (FMV), as determined by 
the Secretary of Defense and, to the extent practicable, on a 
competitive basis.
    (1) DRMS must conduct sales utilizing FMVs that are either provided 
by the Military Services on the Disposal Turn-In Documents (DTIDs) or 
based on DRMS's professional expertise and knowledge of the market. 
Advice regarding FMV shall be provided to DRMS by DOT, as appropriate.
    (2) If the high bid for a sale item does not equal or exceed the 
FMV, DRMS is vested with the discretion to reject all bids and reoffer 
the item:
    (i) As excess property on another oil spill sale, if there is 
indication that reoffer may be successful; or,
    (ii) As surplus property if, after reporting the aircraft to the 
General Services Administration (GSA) for utilization and donation 
screening, there are no Federal or State Agency requirements as 
determined by GSA.
    (3) Disposition of proceeds from sale of aircraft under the Act, net 
of DRMS's expenses, will be to the general fund of the United States 
Treasury as miscellaneous receipts.
    (c) Purchasers shall certify that aircraft and aircraft parts will 
be used only in accordance with conditions stated in Sec. 207.3.
    (1) Sales solicitations will require bidders to submit end-use 
certificates with their bids, stating the intended use and proposed 
areas of operation.
    (2) The completed end-use certificates shall be used in the bid 
evaluation process.
    (d) Sales contracts shall include terms and conditions for verifying 
and enforcing the use of the aircraft and aircraft parts in accordance 
with provisions of the guidance.

[[Page 379]]

    (1) The DRMS Sales Contracting Officer (SCO) is responsible for 
verifying and enforcing the use of aircraft and aircraft parts in 
accordance with the terms and conditions of the sales contract.
    (i) Sales contracts include provisions for on-site visits to the 
purchaser's place(s) of business and/or worksite(s).
    (ii) Sales contracts require the purchaser to make available to the 
SCO, upon his or her request, all records concerning the use of aircraft 
and aircraft parts.
    (2) DOT shall nominate in writing, and the SCO shall appoint, 
qualified Government employees (not contract employees) to serve as 
Contracting Officer's Representatives (CORs) for the purpose of 
conducting on-site verification and enforcement of the use of aircraft 
and aircraft parts for those purposes permitted by the sales contract.
    (i) COR appointments must be in writing and must state the COR's 
duties, the limitations of the appointment, and the reporting 
requirements.
    (ii) DOT bears all COR costs.
    (iii) The SCO may reject any COR nominee for cause, or terminate any 
COR appointment for cause.
    (3) Sales contracts require purchasers to comply with the Federal 
Aviation Agency (FAA) requirements in Chapter 4 of DoD 4160.21-M (August 
1997), paragraphs B 2 b (4) (d) 2 through B 2 b (4) (d) 5.
    (4) Sales contracts require purchasers to comply with the Flight 
Safety Critical Aircraft Parts regime in Chapter 4 of DoD 4160.21-M 
(August 1997), paragraph B 26 c and d, and in Attachment 3 to Chapter 4 
of DoD 4160.21-M (August 1997).
    (5) Sales contracts require purchasers to obtain the prior written 
consent of the SCO for resale of aircraft or aircraft parts purchased 
from DRMS under this Act. Resales are only permitted to other entities 
that, at time of resale, meet the qualifications required of initial 
purchasers. The SCO must seek, and DOT must provide, written assurance 
as to the acceptability of a prospective repurchaser before approving 
resale. Resales will normally be approved for oil spill response 
contractors that have completed their contracts, or that have had their 
contracts terminated, or that can provide other valid reasons for 
seeking resale that are acceptable to the SCO.
    (i) If it is determined by the SCO that there is no interest in the 
aircraft or aircraft parts being offered for resale among entities 
deemed qualified repurchasers by DOT, the SCO may permit resale to 
entities outside the oil spill response industry.
    (ii) When an aircraft or aircraft parts are determined to be 
uneconomically repairable and suitable only for cannibalization and/or 
scrapping, the purchaser shall advise the SCO in writing and provide 
evidence in the form of a technical inspection document from a qualified 
FAA airframe and powerplant mechanic, or equivalent.
    (iii) The policy outlined in paragraph (d)(5) of this section also 
applies to resales by repurchasers, and to all other manner of proposed 
title transfer (including, but not limited to, exchanges and barters).
    (iv) Sales of aircraft and aircraft parts under the Act are intended 
for principals only. Sales offerings will caution prospective purchasers 
not to buy with the expectation of acting as brokers, dealers, agents, 
or middlemen for other interested parties.
    (6) The failure of a purchaser to comply with the sales contract 
terms and conditions may be cause for suspension and/or debarment, in 
addition to other administrative, contractual, civil, and criminal 
(including, but not limited to, 18 U.S.C. 1001) remedies which may be 
available to the Department of Defense.
    (7) Aircraft parts will be made available as follows:
    (i) DRMS may, based on availability and demand, offer for sale under 
the Act whole unflyable aircraft, aircraft carcasses for 
cannibalization, or aircraft parts, utilizing substantially the same 
provisions outlined in paragraphs (a) through (d)(6) of this section for 
flyable aircraft.
    (ii) Sales contracts for unflyable aircraft shall contain a 
restriction in perpetuity against use for flight. DRMS will not issue a 
bill of sale for these aircraft. When unflyable aircraft or aircraft 
residue is to be sold for parts use, the data plates must be removed

[[Page 380]]

and destroyed by the owning military service prior to releasing the 
aircraft to the contractor.
    (iii) If DOT requests that DRMS set aside parts for sale under Act, 
DOT must provide listings of parts required, by National Stock Number 
and Condition Code.
    (iv) Only qualified oil spill response operators who fly the end-
item aircraft will be allowed to purchase unflyable aircraft, aircraft 
carcasses, or aircraft parts applicable to that end-item.
    (v) FMVs are not required for aircraft parts. DRMS will utilize 
historic prices received for similar parts in making sale 
determinations.



Sec. 207.6  Reutilization and transfer procedures.

    Prior to any sales effort, the Secretary of Defense shall, to the 
maximum extent practicable, consult with the Administrator of GSA, and 
with the heads of other Federal departments and agencies as appropriate, 
regarding reutilization and transfer requirements for aircraft and 
aircraft parts under this Act (see Chapter 4 of DoD 4160.21-M (August 
1997), paragraphs B 2 b (1) through B 2 b (3)).
    (a) DOT shall notify Army, Navy, and/or Air Force, in writing, of 
their aircraft requirements as they arise, by aircraft type listed in 
Attachment 1 of Chapter 4 of DoD 4160.21-M (August 1997).
    (b) When aircraft become excess, the owning Military Service will 
screen for reutilization requirements within the Department of Defense, 
and those requirements shall take precedence over DOT requirements under 
this Act.
    (c) Federal agency transfer: (1) The Military Service shall report 
aircraft that survive reutilization screening to GSA Region 9 on a 
Standard Form 120. The Military Service must advise GSA Region 9 if DOT 
has lodged a written requirement for the aircraft for use in oil spill 
response. GSA will screen for Federal agency transfer requirements in 
accordance with the FMR.
    (2) If a Federal agency requirement exists, GSA shall advise the 
owning Military Service, in writing, of its intent to issue the aircraft 
to satisfy the Federal agency requirement. The Military Service will 
notify DOT of the competing Federal requirement for the aircraft. If DOT 
disputes the priority given to the Federal requirement, it shall end a 
written notice of dispute to the owning Military Service and to the 
Deputy Under Secretary of Defense (Logistics and Materiel Readiness 
(DUSD (L&MR)) within thirty (30) days of receipt of notice from the 
Military Service. DUSD (L&MR) shall then resolve the dispute, in 
writing. The aircraft cannot be issued until notification is given and 
any dispute is resolved.
    (d) The Military Services shall: (1) Respond to the DOT, in writing, 
when excess aircraft that can meet DOT's stated requirements have 
survived reutilization and transfer screening.
    (2) Report excess aircraft that survive reutilization and transfer 
screening and are available for sale to Headquarters, Defense 
Reutilization and Marketing Service, ATTN: DRMS-LMI, Federal Center, 74 
Washington Avenue North, Battle Creek, Michigan 49017-3092. The Military 
Services must use a DD Form 1348-1A, DTID, for this purpose.
    (3) Transfer excess aircraft that survive reutilization and transfer 
screening to the Aerospace Maintenance and Regeneration Center (AMARC), 
Davis-Monthan AFB, AZ, and place the aircraft in an ``excess'' storage 
category while aircraft are undergoing oil spill response sale. Aircraft 
shall not be made available or offered to oil spill response operators 
from the Military Service's airfield. The Military Service shall be 
responsible for the AMARC aircraft induction charges. The aircraft 
purchaser will be liable for all AMARC withdrawal charges, to include 
any aircraft preparation required from AMARC. Sale of parts required for 
aircraft preparation is limited to those not required for the 
operational mission forces, and only if authorized by specific authority 
of the respective Military Service's weapon system program manager.



Sec. 207.7  Reporting requirements.

    Not later than 31 March 2003, the Secretary of Defense must submit 
to the Committees on Armed Services and

[[Page 381]]

Commerce, Science, and Transportation of the Senate and the Committees 
on National Security and Transportation and Infrastructure of the House 
of Representatives a report setting forth the following:
    (a) The number and type of aircraft sold under this authority, and 
the terms and conditions under which the aircraft were sold.
    (b) The persons or entities to which the aircraft were sold.
    (c) An accounting of the current use of the aircraft sold.
    (d) DOT must submit to Headquarters, Defense Reutilization and 
Marketing Service, ATTN: DRMS-LMI, Federal Center, 74 Washington Avenue 
North, Battle Creek, Michigan, 49017-3092, not later than 1 February 
2006, a report setting forth an accounting of the current disposition of 
all aircraft sold under the authority of the Act.
    (e) DRMS must compile the report, based on sales contract files and 
(for the third report element) input from the DOT. The report must be 
provided to Headquarters Defense Logistics Agency not later than 1 March 
2006. Headquarters Defense Logistics Agency shall forward the report to 
Deputy Under Secretary of Defense (Logistics & Materiel Readiness) not 
later than 15 March 2006.



Sec. 207.8  Expiration.

    This part expires on 30 September 2006.

                        PARTS 208-209 [RESERVED]



PART 210_ENFORCEMENT OF STATE TRAFFIC LAWS ON DoD INSTALLATIONS--Table 
of Contents




Sec.
210.1 Purpose.
210.2 Applicability and scope.
210.3 Policy.
210.4 Responsibilities.

    Authority: 63 Stat. 377, as amended, 18 U.S.C. 13; 40 U.S.C. 318a 
through d., 40 U.S.C. 612.

    Source: 46 FR 58306, Dec. 1, 1981, unless otherwise noted.



Sec. 210.1  Purpose.

    This part establishes policies pursuant to the requirements of DoD 
Directive 6055.4,\1\ ``Department of Defense Traffic Safety Program,'' 
November 7, 1978, and to authority delegated to the Secretary of Defense 
under Enclosure 1 for the enforcement, on DoD military installations, of 
those state vehicular and pedestrian traffic laws that cannot be 
assimilated under U.S.C., Title 18, section 13.
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.

[46 FR 58306, Dec. 1, 1981, as amended at 56 FR 13285, Apr. 1, 1991]



Sec. 210.2  Applicability and scope.

    (a) The provisions of this part apply to the Office of the Secretary 
of Defense, the Military Departments, the Organization of the Joint 
Chiefs of Staff, the Unified and Specified Commands, and the Defense 
Agencies.
    (b) The provisions encompass all persons who operate or control a 
motor vehicle or otherwise use the streets of a military installation 
over which the United States exercises exclusive or concurrent 
legislative jurisdiction.
    (c) The provisions govern only vehicular and traffic offenses or 
infractions that cannot be assimilated under 18 U.S.C. 13, thereby 
precluding application of state laws to traffic offenses committed on 
military installations.



Sec. 210.3  Policy.

    (a) It is the policy of the Department of Defense that an effective, 
comprehensive traffic safety program be established and maintained at 
all military installations as prescribed in DoD Directive 6055.4.\1\
    (b) State vehicular and pedestrian traffic laws that are now or may 
hereafter be in effect shall be expressly adopted and made applicable on 
military installations to the extent provided by this part. All persons 
on a military installation shall comply with the vehicular and 
pedestrian traffic laws of the state in which the installation is 
located.
    (c) Pursuant to the authority established in the Enclosure 1 to DoD 
Directive 5525.4 \2\, installation commanders of all DoD installations 
in the United States and over which the United

[[Page 382]]

States has exclusive or concurrent legislative jurisdiction are 
delegated the authority to establish additional vehicular and pedestrian 
traffic rules and regulations for their installations. All persons on a 
military installation shall comply with locally established vehicular 
and pedestrian traffic rules and regulations.
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    \2\ See footnote 1 to Sec. 210.1.
---------------------------------------------------------------------------

    (d) A person found guilty of violating, on a military installation, 
any state vehicular or pedestrian traffic law or local installation 
vehicular or pedestrian traffic rule or regulation made applicable to 
the installation under the provisions of this part is subject to a fine 
of not more than $50 or imprisonment for not more than 30 days, or both, 
for each violation (40 U.S.C. 318c).
    (e) A copy of this part shall be posted in an appropriate place on 
the DoD installation concerned.

[46 FR 58306, Dec. 1, 1981, as amended at 56 FR 13285, Apr. 1, 1991; 56 
FR 42939, Aug. 30, 1991]



Sec. 210.4  Responsibilities.

    (a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) shall modify this part as appropriate.
    (b) Secretaries of the Military Departments shall comply with this 
part.



PART 211_DoD FOREIGN TAX RELIEF PROGRAM--Table of Contents




Sec.
211.1 Reissuance and purpose.
211.2 Applicability and scope.
211.3 Definitions.
211.4 Policy.
211.5 Responsibilities.
211.6 Country tax law studies.
211.7 Information requirements.

    Authority: 5 U.S.C. 301 and 10 U.S.C. 133.

    Source: 44 FR 50598, Aug. 29, 1979, unless otherwise noted.



Sec. 211.1  Reissuance and purpose.

    This part (a) is reissued without substantive change, to correct 
superseded references; and (b) defines the tax relief policy of the 
Department of Defense, designates the organizational element which has 
continuing responsibility for the overall direction of the DoD Foreign 
Tax Relief Program, delineates the responsibilities of other 
organizational elements to implement and monitor the program, and 
requires the preparation and maintenance of specified foreign country 
tax law studies in order to facilitate the institution of statistical 
reporting procedures.



Sec. 211.2  Applicability and scope.

    (a) The provisions of this part apply to the Office of the Secretary 
of Defense, the Military Departments, the Organization of the Joint 
Chiefs of Staff, the Unified Command, and the Defense Agencies 
(hereafter referred to as ``DoD Components'').
    (b) The policy set forth in this part applies to:
    (1) Military functions expenditures by the Department of Defense, 
and
    (2) Expenditures by nonappropriated fund activities of the 
Department of Defense that are subject to taxes imposed by:
    (i) Foreign countries in which U.S. military forces are regularly 
stationed (other than attache and other military personnel assigned to a 
U.S. diplomatic mission); and
    (ii) Any other foreign country in which all or most U.S. defense 
activities, in a collective sense, are conducted in the interest of the 
common defense or otherwise significantly improve the military security 
of that country.
    (c) The policy set forth in this part also applies to Military 
Assistance Program (MAP) expenditures in all countries.



Sec. 211.3  Definitions.

    (a) Regardless of how a charge is denominated in foreign law or 
regulation, the words ``tax'' and ``taxes'' include all direct or 
indirect foreign customs duties, import and export taxes, excises, fees 
and other charges imposed at the national, local or intermediate level 
of a foreign country other than charges for services rendered or for 
other consideration received.
    (b) For example, taxes include but are not limited to purchase tax, 
sales tax, use tax, gross receipts tax, stamp tax, transfer tax, 
transaction tax, turnover tax, value added tax, service tax, trade tax, 
business tax, license tax, transportation tax, circulation tax,

[[Page 383]]

luxury tax, possession tax, production tax, registration tax, 
consumption tax, gasoline tax, real property tax, personal property tax, 
and gross income tax.
    (c) The word ``relief'' includes any method, technique, or procedure 
by which the ultimate economic burden of a tax on DoD funds may be 
avoided or otherwise remedied, such as exemption, refund, or drawback.



Sec. 211.4  Policy.

    It is the policy of the Department of Defense to secure, to the 
maximum extent practicable, effective relief from all foreign taxes 
wherever the ultimate economic burden of those taxes would, in the 
absence of such relief, be borne by funds appropriated or allocated to 
the Department of Defense (including MAP appropriations) or under the 
control of its nonappropriated fund activities. In those cases in which 
the total economic burden of a tax not readily identifiable in the 
normal course of business is so small that it may be considered a de 
minimis matter, or in which the administrative burden of securing 
effective relief from a tax in a particular instance would be out of 
proportion to the amount of the relief obtained, tax relief shall be 
considered impracticable.



Sec. 211.5  Responsibilities.

    (a) The General Counsel of the Department of Defense shall:
    (1) Provide overall supervision and direction of the DoD Foreign Tax 
Relief Program.
    (2) Resolve any significant issues relating to the program.
    (3) Designate those countries that come within Sec. 211.2(b)(2)(ii) 
of this part.
    (4) Direct the preparation of country tax law studies for countries 
not within the scope of Sec. 211.2(b) of this part.
    (5) Designate the DoD member of the Inter-Agency Committee on 
Foreign Tax Relief, established by the Department of State.
    (b) The Assistant Secretary of Defense (International Security 
Affairs) shall monitor the negotiation and conclusion of international 
agreements subject to the Secretary's approval authority under DoD 
Instruction 2050.1 Delegated Approval Authority to Negotiate and 
Conclude International Agreements, July 6, 1977,\1\ to ensure that such 
agreements are compatible with the policy set forth in this part and any 
implementing guidance concerning that policy issued by the General 
Counsel of the Department of Defense.
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    \1\ See footnote 1 to Sec. 209.5(d).
---------------------------------------------------------------------------

    (c) The Chairman, Defense Acquisition Regulatory Council, shall 
coordinate with the General Counsel of the Department of Defense before 
the issuance, amendment, or revision of any portion of the Defense 
Acquisition Regulatory System (or regulation, directive, circular, or 
other publication within the scope of 32 CFR part 160 that pertains to 
the implementation of the DoD Foreign Tax Relief Program.
    (d) The Assistant Secretary of Defense (Comptroller) shall perform 
such fiscal functions as may be required to implement the DoD Foreign 
Tax Relief Program, including advice and assistance in the institution 
of procedures for collecting data, compiling reports, and performing 
internal audits.
    (e) The Secretary of each of the Military Departments and the 
Director of each of the Defense Agencies shall issue instructions or 
regulations that charge a single office within the respective Military 
Department of Defense Agency (referred to as the ``Cognizant Office'') 
with continuing responsibility for supervising and monitoring the 
implementation of the DoD Foreign Tax Relief Program within such 
Department or Agency. Such instructions or regulations shall delegate to 
the Cognizant Office authority commensurate with its responsibility.
    (f) Commanders of Unified Commands, as appropriate, shall promulgate 
management procedures to guide and coordinate the administration of the 
DoD Foreign Tax Relief Program throughout their respective area 
commands.
    (g) For each foreign country that comes within the scope of 
subsection B.2. of this directive, a single Military Commander shall be 
designated by the Commander of the Unified Command. The designated 
Military Commander shall be the same designated under the procedures in 
32 CFR 151.3(c). The designated Military Commander shall:

[[Page 384]]

    (1) Make and maintain a current country tax law study in accordance 
with Sec. 211.6 of this part.
    (2) Be the single point of contact for U.S. contracting officers and 
activities for the investigation and resolution of specific matters that 
relate to the foreign tax relief program within the country for which 
the Military Commander is designated and for the forwarding of major 
problems affecting that program through proper channels to the General 
Counsel of the Department of Defense.
    (3) Provide liaison with the responsible U.S. diplomatic mission on 
current tax relief problems and, where appropriate, with local foreign 
tax authorities.



Sec. 211.6  Country tax law studies.

    (a) The taxes covered by each country tax law study shall be limited 
to those which in the absence of tax relief, would affect, or would 
appear to affect, U.S. Government expenditures, even as a de minimis 
matter. (All such taxes are hereafter referred to as ``applicable 
taxes.'') The formats of the studies for all countries shall be similar 
within each Unified Command insofar as practicable, and designed to 
facilitate statistical reporting procedures. The studies shall be 
prepared and maintained with a view to the practical utilization of the 
studies by U.S. contracting officers and activities for purposes of 
making reliable estimates of the total amount of taxes applicable to any 
particular contract and the amount thereof for which tax relief is 
available.
    (b) Each country tax law study shall consist of the following:
    (1) A general survey of all applicable taxes, together with 
translations, as appropriate, of the salient features of the law or 
regulations imposing those taxes.
    (2) For each applicable tax, a summary statement containing: Its 
name; its rate (or rates); the taxing authority (national, provincial, 
or municipal); the legal incidence of the tax (the nature of the 
taxpayer or other entity liable for the payment of the tax to the taxing 
authority under the law of the country); its description (including the 
base or bases on which the tax is imposed); the applicability of the tax 
to various types of contracts (supplies, services, or construction) in 
the event the tax is applicable to only one or several of such types of 
contracts; the applicability of the tax to the prime contract, as well 
as to any subcontracts or purchase orders issued by the prime contractor 
or subcontractor; the applicability of the tax to contractor and 
subcontractor personnel; the variation, if any, of the applicability of 
the tax depending upon the domicile of the contractor or contractor 
personnel, such as United States, host country, or third country; any 
applicable exemptions or deductions of significance; and the method of 
collection of the tax.
    (3) The basis upon which it is concluded that each applicable tax, 
in absence of tax relief, would affect, or would appear to affect, U.S. 
Government expenditures; and any evidence of the degree to which its 
ultimate economic burden would, in absence of tax relief, be borne by 
the U.S. Government rather than be absorbed by others.
    (4) The substantive tax relief, if any, from each applicable tax 
that is available to the U.S. Government either by international 
agreements in force or under the tax law or other regulation of the 
country; the procedures which may be used to obtain any such relief; the 
requirement, if any, for the issuance of a tax exemption certificate by 
the military procuring agency or by an agency of the country to secure 
an exemption; the entitlement, if any, of the taxpayer to interest on 
any tax refund made by the host country; the credits, if any, that may 
be available against any other taxes otherwise payable by the taxpayer 
resulting from the payment of the tax under analysis; the approximate 
amount of the tax that should be involved in a particular case, if such 
can be estimated, taking into account the costs of filing a claim for 
refund by a contractor to warrant filing such a claim; and a brief 
narration of any significant problems which have occurred in attempting 
to obtain relief in particular cases.
    (5) A conclusion with regard to the adequacy of current tax relief 
measures; and such recommendations as may be appropriate for more 
efficient

[[Page 385]]

implementation of the policy set forth in this part.
    (c) Appended to each country tax law study shall be a verbatim 
quotation of all provisions relating to tax relief afforded by the 
country that are contained in international agreements in force.
    (d) One copy of each country tax law study shall be forwarded to the 
General Counsel of the Department of Defense and to each of the 
Cognizant Offices of the Military Departments and Defense Agencies 
within 30 days after its approval by the designated Military Commander. 
The information contained in the studies shall be disseminated by the 
Cognizant Offices to U.S. contracting officers and activities when 
required.
    (e) Country tax law studies shall be subject to continuing review. 
When there is a significant change in country tax laws, regulations, tax 
relief procedures, or in pertinent international agreements in force, 
the corresponding revision shall be promptly forwarded by the designated 
Military Commander to each of the offices referred to in Sec. 211.6(d).



Sec. 211.7  Information requirements.

    (a) The reporting requirement contained in Sec. 211.6 relating to 
the submission of country tax law studies and revisions thereof is 
assigned Report Control Symbol DDSD (AR) 1036.
    (b) Each January a summary of significant activities during the 
preceding year in implementation of the DoD Foreign Tax Relief Program 
shall be furnished by the Heads of Cognizant Offices to the General 
Counsel of the Department of Defense. The summary, in narrative form, 
shall include actions taken by the Cognizant Office to discharge its 
responsibility for supervising and monitoring the implementation of the 
foreign tax relief program within its Military Department or Defense 
Agency, and for disseminating the information contained in country tax 
law studies to U.S. contracting officers and activities. The reporting 
requirement contained in this subsection is assigned Report Control 
Symbol DDGC (A) 1198.
    (c) Each January a summary of significant activities during the 
preceding year of the administration of the foreign tax relief program 
shall be furnished by Commanders of the Unified Commands to the General 
Counsel of the Department of Defense. The summary, in narrative form, 
shall include actions taken by the Unified Command to discharge its 
responsibility to supervise and coordinate the preparation and 
maintenance of country tax law studies. The reporting requirement 
contained in this subsection is assigned Report Control Symbol DDGC (A) 
1199.



PART 212_PRIVATE ORGANIZATIONS ON DoD INSTALLATIONS--Table of Contents




Sec.
212.1 Reissuance and purpose.
212.2 Applicability.
212.3 Definitions.
212.4 Policy.
212.5 Responsibilities.
212.6 Procedures.

    Authority: 5 U.S.C. 301.

    Source: 63 FR 32616, June 15, 1998, unless otherwise noted.



Sec. 212.1  Reissuance and purpose.

    This part:
    (a) Revises 32 CFR part 212.
    (b) Implements policy in DoD Directive 5124.5.\1\
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    \1\ Copies may be obtained, if needed, from the National Technical 
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (c) Updates responsibilities and procedures to define and 
reestablish parameters for private organizations located on DoD 
installations for their authorization and support.



Sec. 212.2  Applicability.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Defense Agencies, and DoD Field Activities (hereafter 
referred to collectively as the ``DoD Components'').
    (b) Private organizations authorized to operate on DoD 
installations.



Sec. 212.3  Definitions.

    (a) DoD Installation. A location, facility, or activity owned, 
leased, assigned

[[Page 386]]

to, controlled, or occupied by a DoD Component.
    (b) Private Organizations. Self-sustaining and non-Federal entities, 
incorporated or unincorporated, which are operated on DoD installations 
with the written consent of the installation commander or higher 
authority, by individuals acting exclusively outside the scope of any 
official capacity as officers, employees, or agents of the Federal 
Government.



Sec. 212.4  Policy.

    It is DoD policy under DoD Directive 5124.5 that procedures be 
established for the operation of private organizations on DoD 
installations to prevent the official sanction, endorsement, or support 
by DoD Components except as in 32 CFR part 84. Private organizations are 
not entitled to sovereign immunity and privileges accorded to Federal 
entities and instrumentalities. Private organizations are not Federal 
entities and are not to be treated as such, in order to avoid conflicts 
of interest and unauthorized expenditures of appropriated, commissary 
surcharge, or nonappropriated funds.



Sec. 212.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Force Management Policy, 
under the Under Secretary of Defense for Personnel and Readiness, shall 
be responsible for all policy matters and OSD oversight for the 
monitoring of private organizations on DoD installations.
    (b) The Heads of the DoD Components shall implement this part, shall 
be kept aware of all private organizations located on installations 
under their jurisdictions, and ensure that periodic reviews of private 
organizations are conducted to:
    (1) Ensure for each such private organization that the membership 
provisions and purposes on the basis of which the organization was 
permitted on the installation continue to apply, thereby justifying 
continuance on the installation. Substantial changes to those conditions 
shall necessitate further review, documentation, and approval for 
continued permission to remain on the installation.
    (2) Furnish reports to the Assistant Secretary of Defense for Force 
Management Policy on private organizations covered by this part as 
required.



Sec. 212.6  Procedures.

    (a) To prevent the appearance of an official sanction or support by 
the Department of Defense, a private organization covered by this part 
shall not utilize the following in its title or letterhead:
    (1) The name or seal of the Department of Defense or the acronym 
``DoD.''
    (2) The name, abbreviation, or seal of any DoD Component or 
instrumentality.
    (3) The seal, insignia, or other identifying device of the local 
installation.
    (4) Any other name, abbreviation, seal, logo, insignia, or the like, 
used by any DOD Component to identify any of its programs, locations, or 
activities.
    (b) Activities of private organizations covered by this part shall 
not in any way prejudice or discredit the DoD Components or the other 
Agencies of the Federal Government.
    (c) The nature, function, and objectives of a private organization 
covered by this part shall be delineated in a written constitution, by-
laws, charter, articles of agreement, or other authorization documents 
acceptable to the head of the DoD installation. That documentation shall 
also include:
    (1) Description of membership eligibility in the private 
organization.
    (2) Designation of management responsibilities, to include the 
accountability for assets, satisfaction of liabilities, disposition of 
any residual assets on dissolution, and other matters that show 
responsible financial management.
    (3) Documentation indicating an understanding by all members as to 
whether they are personally liable if the assets are insufficient to 
discharge all liabilities.
    (d) A private organization covered by this part that offers programs 
or services similar to either appropriated or nonappropriated fund 
activities on a DoD installation shall not compete with, but may, when 
specifically authorized in the approval document, supplement those 
activities.

[[Page 387]]

    (e) Private organizations covered by this part shall be self-
sustaining, primarily through dues, contributions, service charges, 
fees, or special assessment of members. There shall be no financial 
assistance to a private organization from a nonappropriated fund 
instrumentality in the form of contributions, repairs, services, 
dividends, or other donations of money or other assets. Fundraising and 
membership drives are governed by 32 CFR part 84.
    (f) The DoD Components may provide logistical support to private 
organizations with appropriated Federal Government resources in 
accordance with 32 CFR part 84. In conformance with DoD Directive 
1015.1,\2\ nonappropriated fund instrumentalities funds or assets shall 
not be directly or indirectly transferred to private organizations.
---------------------------------------------------------------------------

    \2\ See footnote to Sec. 212.1(b).
---------------------------------------------------------------------------

    (g) Personal and professional participation in private organizations 
by DoD employees is governed by 32 CFR part 84.
    (h) Neither appropriated fund activities nor nonappropriated fund 
instrumentalities may assert any claim to the assets, or incur or assume 
any obligation of any private organization covered by this part except 
as may arise out of contractual relationships. Property abandoned by a 
private organization on its disestablishment or departure from the 
installation, or donated by it to the installation, may be acquired by 
the DoD installation under the terms of applicable agreements, statutes, 
and DoD policy.
    (i) Adequate insurance, as defined by the Service concerned, shall 
be secured by the organization to protect against public liability and 
property damage claims or other legal actions that may arise as a result 
of activities of the organization or one or more of its members acting 
in its behalf, or the operation of any equipment, apparatus or device 
under the control and responsibility of the private organization.
    (j) Private organizations shall be responsible for ensuring 
applicable fire and safety regulations, environmental laws, local, 
state, and Federal tax codes, and any other applicable statutes and 
regulations are complied within the operation of the private 
organization.
    (k) Income shall not accrue to individual members except through 
wages and salaries as employees of the private organization or as award 
recognition for service rendered to the private organization or military 
community. The head of a DoD installation concerned may approve the 
operation of private organizations, such as investment clubs, in which 
the investment of members' personal funds result in a return on 
investment directly and solely to the individual members.
    (l) No person because of race, color, creed, sex, age, disability or 
national origin shall be unlawfully denied membership, unlawfully 
excluded from participation, or otherwise subjected to unlawful 
discrimination by any private organization on a DoD installation covered 
by this part. DoD installations will publicly disseminate information on 
procedures for individuals to follow at the local installation when 
unlawful discrimination by private organizations is suspected.
    (m) Applicable laws on labor standards for employment shall be 
observed.
    (n) This part does not apply to the following organizations, which 
are governed by DoD Directives and Instructions as referenced:
    (1) Scouting organizations operating at U.S. military installations 
located overseas (DoD Instruction 1015.9).\3\
---------------------------------------------------------------------------

    \3\ See footnote to Sec. 212.1(b).
---------------------------------------------------------------------------

    (2) American National Red Cross (DoD Directive 1330.5).\4\
---------------------------------------------------------------------------

    \4\ See footnote to Sec. 212.1(b).
---------------------------------------------------------------------------

    (3) United Service Organizations, Inc. (DoD Directive 1330.12).\5\
---------------------------------------------------------------------------

    \5\ See footnote to Sec. 212.1(b).
---------------------------------------------------------------------------

    (4) United Seamen's Service (DoD Directive 1330.16).\6\
---------------------------------------------------------------------------

    \6\ See footnote to Sec. 212.1(b).
---------------------------------------------------------------------------

    (5) Financial Institutions on DoD Installations (32 CFR part 231).
    (o) Certain unofficial activities may be conducted on DoD 
installations, but need not be formally authorized because of the 
limited scope of their activities, membership or funds. Examples are 
office coffee funds, flower funds, and similar small, informal 
activities and funds. DoD Components shall establish the basis upon 
which

[[Page 388]]

such informal activities and funds shall operate.



PART 215_EMPLOYMENT OF MILITARY RESOURCES IN THE EVENT OF CIVIL 
DISTURBANCES--Table of Contents




Sec.
215.1 Purpose and scope.
215.2 Applicability.
215.3 Definitions.
215.4 Legal considerations.
215.5 Policies.
215.6 Responsibilities.
215.7 Command relationships.
215.8 Organization and administration.
215.9 Providing military resources to civil authorities.
215.10 Funding.

    Authority: Chapter 15 of title 10 U.S.C. (10 U.S.C. 331 et seq.).

    Source: 37 FR 3637, Feb. 18, 1972, unless otherwise noted.



Sec. 215.1  Purpose and scope.

    This part establishes uniform Department of Defense policies, 
assigns responsibilities, and furnishes general guidance for utilizing 
DoD military and civilian personnel, facilities, equipment or supplies:
    (a) In support of civil authorities during civil disturbances within 
the 50 States, District of Columbia, Commonwealth of Puerto Rico, U.S. 
possessions and territories, or any political subdivision thereof.
    (b) In other related instances where military resources may be used 
to protect life or Federal property or to prevent disruption of Federal 
functions.



Sec. 215.2  Applicability.

    This part is applicable to all components of the Department of 
Defense (the Military Departments, Organization of the Joint Chiefs of 
Staff, Defense Agencies, and the unified and specified commands) having 
cognizance over military resources which may be utilized in accordance 
with the policies set forth herein.



Sec. 215.3  Definitions.

    (a) Civil disturbances are group acts of violence and disorders 
prejudicial to public law and order within the 50 States, District of 
Columbia, Commonwealth of Puerto Rico, U.S. possessions and territories, 
or any political subdivision thereof. The term civil disturbance 
includes all domestic conditions requiring the use of Federal armed 
forces pursuant to the provisions of chapter 15 of Title 10, United 
States Code.
    (b) Federal property is that property which is owned, leased, 
possessed, or occupied by the Federal Government.
    (c) Military resources include military and civilian personnel, 
facilities, equipment, and supplies under the control of a DoD 
component.
    (d) A Federal function is any function, operation, or action carried 
out under the laws of the United States by any department, agency, or 
instrumentality of the United States or by an officer or employee 
thereof.



Sec. 215.4  Legal considerations.

    (a) Under the Constitution and laws of the United States, the 
protection of life and property and the maintenance of public order are 
primarily the responsibilities of State and local governments, which 
have the necessary authority to enforce the laws. The Federal Government 
may assume this responsibility and this authority only in certain 
limited instances.
    (b) Aside from the constitutional limitations of the power of the 
Federal Government at the local level, there are additional legal limits 
upon the use of military forces within the United States. The most 
important of these from a civil disturbance standpoint is the Posse 
Comitatus Act (18 U.S.C. 1385), which prohibits the use of any part of 
the Army or the Air Force to execute or enforce the laws, except as 
authorized by the Constitution or Act of Congress.
    (c) The Constitution and Acts of Congress establish six exceptions, 
generally applicable within the entire territory of the United States, 
to which the Posse Comitatus Act prohibition does not apply.
    (1) The constitutional exceptions are two in number and are based 
upon the inherent legal right of the U.S. Government--a sovereign 
national entity under the Federal Constitution--to insure the 
preservation of public order and the carrying out of governmental

[[Page 389]]

operations within its territorial limits, by force if necessary.
    (i) The emergency authority. Authorities prompt and vigorous Federal 
action, including use of military forces, to prevent loss of life or 
wanton destruction of property and to restore governmental functioning 
and public order when sudden and unexpected civil disturbances, 
disasters, or calamities seriously endanger life and property and 
disrupt normal governmental functions to such an extent that duly 
constituted local authorities are unable to control the situations.
    (ii) Protection of Federal property and functions. Authorizes 
Federal action, including the use of military forces, to protect Federal 
property and Federal governmental functions when the need for protection 
exists and duly constituted local authorities are unable or decline to 
provide adequate protection.
    (2) There are four exceptions to the Posse Comitatus Act based on 
Acts of Congress.
    (i) In the cases of each of the first three of those described, 
paragraphs (c)(2)(i) (a), (b), and (c) of this section, personal 
Presidential action, including the issuance of a proclamation calling 
upon insurgents to disperse and retire peaceably within a limited time, 
is a prerequisite.
    (a) 10 U.S.C. 331. Authorizes use of the militia and Armed Forces 
when a State is unable to control domestic violence, and a request for 
Federal assistance has been made by the State legislature or governor to 
the President. Implements Article IV, section 4, of the Constitution.
    (b) 10 U.S.C. 332. Authorizes use of the militia and Armed Forces to 
enforce Federal law when unlawful obstructions or rebellion against the 
authority of the United States renders ordinary enforcement means 
unworkable. Implements Article II, section 3, of the Constitution.
    (c) 10 U.S.C. 333. Authorizes use of the militia and Armed Forces 
when domestic violence or conspiracy hinders execution of State or 
Federal law, and a State cannot or will not protect the constitutional 
rights of the citizens. Implements Article II, section 3, and the 14th 
Amendment of the Constitution.
    (d) House Joint Resolution 1292, June 6, 1968.\1\ Directs all 
departments of the Government, upon the request of the Secret Service, 
to assist that Service in carrying out its statutory duties to protect 
Government officials and major political candidates from physical harm. 
Assistance to the Secret Service is governed by DoD Directive 3025.13, 
``Employment of Department of Defense Resources in Support of the United 
States Secret Service,'' July 15, 1968.\2\
---------------------------------------------------------------------------

    \1\ Although this resolution has been placed in the Statutes at 
Large as Public Law 90-331, 82 Stat. 170, it has not been codified; it 
is set out in the notes to 18 U.S.C. 3056.
    \2\ Filed as part of original copies available from U.S. Naval 
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 
19120, Code: 300.
---------------------------------------------------------------------------

    (ii) It should be noted that none of the above authorities, in and 
of itself, provides sufficient legal basis to order members of the 
Reserve components to active Federal service.



Sec. 215.5  Policies.

    (a) The employment of DoD military resources for assistance to civil 
authorities in controlling civil disturbances will normally be 
predicated upon the issuance of a Presidential Executive order or 
Presidential directive authorizing and directing the Secretary of 
Defense to provide for the restoration of law and order in a specific 
State or locality. Exceptions to this condition will be limited to:
    (1) Cases of sudden and unexpected emergencies as described in Sec. 
215.4(c)(1)(i), which require that immediate military action be taken.
    (2) Providing military resources to civil authorities as prescribed 
in Sec. 215.9 of this part.
    (b) The Attorney General of the United States has been designated to 
receive and coordinate preliminary requests from States for Federal 
military assistance authorized by 10 U.S.C. 331 (Sec. 
215.4(c)(2)(i)(a)). Formal requests from States for such aid will be 
made to the President, who will determine what Federal action will be 
taken.
    (c) The Secretary of the Army is delegated any and all of the 
authority of the President under chapter 15 of title 10, U.S.C. (Sec. 
215.4(c)(2)(i) (a), (b), and (c))

[[Page 390]]

which has been or may be hereafter delegated by the President to the 
Secretary of Defense.
    (d) The Secretary of the Navy and the Secretary of the Air Force are 
delegated all that authority which has been or may be hereafter 
delegated by the President to the Secretary of Defense to order to 
active duty, units and members of the Reserve Components under their 
respective jurisdictions, except National Guard units and members, for 
use pursuant to chapter 15 of title 10, U.S.C. (Sec. 215.4(c)(2)(i) 
(a), (b), and (c)).
    (e) DoD components and their subordinate activities will coordinate 
with local civil authorities or local military commanders as 
appropriate, to assure mutual understanding of the policies and 
procedures to be adhered to in an actual or anticipated civil 
disturbance situation.
    (f) DoD civilian employees generally should not be used to assist 
civil authorities in connection with civil disturbances, except as 
provided for in Sec. 215.9(b)(3).
    (g) The prepositioning of more than a battalion-sized unit, as 
authorized in Sec. 215.6(a)(6), will be undertaken only with the 
approval of the President. Requests for the prepositioning of forces 
will be addressed to the Attorney General.



Sec. 215.6  Responsibilities.

    (a) The Secretary of the Army is designated as the Executive Agent 
for the Department of Defense in all matters pertaining to the planning 
for, and the deployment and employment of military resources in the 
event of civil disturbances. As DoD Executive Agent, the Secretary of 
the Army (or the Under Secretary of the Army, as his designee) is 
responsible for:
    (1) Providing policy and direction concerning plans, procedures, and 
requirements to all DoD components having cognizance over military 
resources which may be employed under the provisions of this part.
    (2) Improving and evaluating the capabilities of the National Guard 
to deal with civil disturbances.
    (3) Establishing DoD policies and procedures for:
    (i) Calling the National Guard to active Federal service and 
ordering the National Guard and other Reserve components to active duty; 
and
    (ii) The employment of such forces that may be required to carry out 
the purposes of this part.
    (4) Calling to active Federal service:
    (i) The Army National Guard units or members required to carry out 
the provisions of the Presidential Executive order or other appropriate 
authority.
    (ii) The Air National Guard units or members required to carry out 
the provisions of the Presidential Executive order or other appropriate 
authority, subject to the provisions of paragraph (c)(1)(i) of this 
section.
    (5) Providing military resources of the U.S. Army, consistent with 
defense priorities to include:
    (i) The military resources of the Army National Guard called to 
active Federal service under the provisions of paragraph (a)(4)(i) of 
this section.
    (ii) The military resources of the Army Reserve (other than Army 
National Guard) ordered to active duty to carry out the purposes of this 
part.
    (6) Exercising through designated military commanders the direction 
of military resources committed or assigned for employment in the event 
of actual or potential civil disturbances. When circumstances warrant, 
such direction will include:
    (i) Alerting, and, if necessary, prepositioning predesignated ground 
forces; and
    (ii) Directing the Secretary of the Air Force to alert and provide 
the necessary airlift resources (see Sec. 215.5(g)).
    (7) Devising command, control, and communications arrangements to 
insure effective coordination and responsiveness among Defense agencies, 
military departments, the Joint Chiefs of Staff, and Commanders-in-Chief 
(CINCs) of unified and specified commands, under conditions of 
prepositioning, deployment, or employment of military resources. Maximum 
utilization will be made of existing reports of the Joint Reporting 
Structure

[[Page 391]]

(JRS), as prescribed in JCS Pub 6.\3\ Arrangements and reports affecting 
commanders of unified and specified commands will be coordinated with 
the JCS.
---------------------------------------------------------------------------

    \3\ Not available to the public. Copies have been distributed to 
appropriate military commanders.
---------------------------------------------------------------------------

    (8) Promulgating in implementation of DoD Directive 5200.27, 
``Acquisition of Information Concerning Persons and Organizations not 
Affiliated with the Department of Defense,'' March 1, 1971,\1\ strict 
policy guidelines designed to restrict to the maximum extent consistent 
with the effective conduct of actual civil disturbance operations the 
collection and maintenance of intelligence data in support of military 
civil disturbance planning and operations within the Department of 
Defense.
    (9) Keeping the Secretary of Defense informed of unusual military 
resource requirements (actual or potential) and other significant 
developments in connection with civil disturbance planning and 
operations.
    (10) Establishing procedures for the review and coordination of all 
DoD components' directives, instructions, and plans affecting civil 
disturbance planning and operations to assure conformity with DoD 
policies stated herein and DoD Executive Agent policies.
    (11) Providing for the establishment of a DoD Civil Disturbance 
Steering Committee and a Directorate of Military Support (see Sec. 
215.8).
    (12) Providing the necessary facilities, equipment, and personnel as 
required by the Assistant Secretary of Defense (Public Affairs) in the 
accomplishment of his public affairs responsibilities set forth in 
paragraph (f) of this section.
    (13) Within the restrictions established by DoD Directive 5200.27, 
``Acquisition of Information Concerning Persons and Organizations not 
Affiliated with the Department of Defense,'' March 1, 1971,\1\ and the 
implementing guidelines referred to in paragraph (a)(8) of this section, 
providing essential planning, operational, and intelligence data to the 
National Military Command Center (NMCC) and the military service command 
centers on a timely basis to insure that the National Command 
Authorities and appropriate military service command authorities are 
adequately informed.
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 215.4(c)(2)(i)(d).
---------------------------------------------------------------------------

    (b) The Joint Chiefs of Staff are responsible for:
    (1) Establishing procedures that will promptly transfer military 
resources that are assigned to unified and specified commands (i) to the 
military departments for civil disturbance operations in the Continental 
United States (CONUS) or (ii) to unified commands for such operations 
outside the CONUS, as directed by the DoD Executive Agent and consistent 
with defense priorities.
    (2) Maintaining an appropriate strategic reserve for worldwide 
employment and contingency operations.
    (3) Insuring that directives concerning civil disturbances are 
issued to the commanders of unified commands, for the employment of 
military resources outside the CONUS, in accordance with direction and 
guidance provided by the DoD Executive Agent.
    (c) The Secretary of the Air Force is responsible for:
    (1) Providing military resources of the U.S. Air Force, as required 
by the DoD Executive Agent and consistent with defense priorities, to 
include:
    (i) Designating and providing the specific units or members of the 
Air National Guard to be called to active Federal service under the 
provisions of paragraph (a)(4)(ii) of this section.
    (ii) Designating and providing the military resources of the Air 
Force Reserve (other than Air National Guard) order to active duty to 
carry out the purposes of this part.
    (2) Exercising for the DoD Executive Agent, through designated 
military commanders, coordinating authority over and direction of DoD 
provided military and commercial obligated airlift resources used to 
fulfill civil disturbance airlift requirements.
    (3) Providing airlift to deploy and redeploy civil disturbance 
forces and for supply, resupply, and aeromedical evacuation.
    (d) The Secretary of the Navy is responsible for:
    (1) Designating and providing military resources of the U.S. Navy 
and the

[[Page 392]]

U.S. Marine Corps, as required by the DoD Executive Agent and consistent 
with defense priorities, to include ordering to active duty and 
utilizing the resources of the Naval Reserve and the Marine Corps 
Reserve required to carry out the purposes of this directive.
    (2) Insuring that Navy and Marine forces committed in connection 
with civil disturbances are trained and equipped in accordance with 
criteria established by the DoD Executive Agent.
    (3) Making airlift resources available to the Secretary of the Air 
Force, consistent with defense priorities, as requested by him in the 
accomplishment of his airlift responsibilities set forth in paragraph 
(c) of this section.
    (e) The Defense agencies are responsible for providing military 
resources as required, and advice and assistance on matters within their 
spheres of responsibility, to the DoD Executive Agent and to the 
Secretaries of the military departments and to the Joint Chiefs of Staff 
in the discharge of their responsibilities.
    (f) The Assistant Secretary of Defense (Public Affairs) is 
responsible for all DoD public affairs matters related to civil 
disturbances. To assure efficiency and responsiveness in keeping the 
public fully informed, he will:
    (1) Provide direction and guidance to the DoD Executive Agent on all 
aspects of public release of information relating to civil disturbances.
    (2) Assign Public Affairs representatives, of appropriate rank, to 
the Directorate of Military Support during civil disturbance operations.
    (3) Designate as required onsite DoD Public Affairs Chiefs who will 
furnish appropriate advice and guidance to task force commanders and, 
upon request or by direction of appropriate authorities, to other 
representatives of the Federal Government. The onsite Public Affairs 
Chief is responsible for releasing all military information to the 
public in the affected area(s). He will be responsible for such other 
public affairs functions as directed by competent authority. In the 
event of a disagreement concerning the releasing of military information 
to the public between a task force commander and the onsite Public 
Affairs Chief, the issue will be resolved by the ASD(PA) who will 
coordinate with the DoD Executive Agent to the extent feasible.



Sec. 215.7  Command relationships.

    (a) In the event of civil disturbances within the CONUS:
    (1) Military resources of the unified or specified commands will be 
transferred by the JCS to their respective military departments, when 
directed by the DoD Executive Agent. (Such resources will revert to the 
unified or specified commands when directed by the DoD Executive Agent.)
    (2) The DoD Executive Agent is delegated the authority to exercise, 
through the Chief of Staff, U.S. Army, the direction of those forces 
assigned or committed to him by the military departments.
    (b) In the event of civil disturbances outside of CONUS, the DoD 
Executive Agent is delegated the authority to exercise the direction of 
those forces assigned or committed to the commanders of unified or 
specified commands through the Chief of Staff, U.S. Army, and Task Force 
Commanders designated by JCS.
    (c) At objective areas, designated task force commanders will 
exercise operational control over all military forces assigned for 
employment in the event of civil disturbances.



Sec. 215.8  Organization and administration.

    (a) A DoD Civil Disturbance Steering Committee will be established 
to provide advice and assistance to the DoD Executive Agent concerning 
civil disturbance matters. The Committee Chairman will be the Under 
Secretary of the Army. Members will include:

Deputy Attorney General of the United States.
Assistant Secretaries of Defense (Comptroller) and (Public Affairs).
General Counsel of the DoD.
Under Secretaries of the Navy and Air Force.
Vice Chiefs of Staff of the Army and Air Force.
Vice Chief of Naval Operations and Assistant Commandant of the Marine 
Corps.
Representative of the JCS.

    (b) A Directorate of Military Support (DOM's) will be established by 
the DoD Executive Agent with a joint service

[[Page 393]]

staff under the Chief of Staff, U.S. Army. The Department of the Army 
will provide the Director and the Department of the Air Force will 
provide the Deputy Director. The DOMs will plan, coordinate, and direct 
civil disturbance operations.



Sec. 215.9  Providing military resources to civil authorities.

    This section provides general guidance for the handling of requests 
for DoD facilities, personnel, equipment, or supplies, received from 
officials of the 50 States, District of Columbia, Commonwealth of Puerto 
Rico, U.S. possessions and territories, or any political subdivision 
thereof, for use in connection with civil disturbances.
    (a) Loan policy. Civil authorities, National Guard, and Federal 
agencies will be encouraged to provide sufficient resources of their 
own, so as to minimize the need to rely on DoD assistance.
    (1) Classification of resources. Military resources will be 
classified into three groups, as follows:
    (i) Group One. Personnel, arms, ammunition, tank-automotive 
equipment, and aircraft.
    (ii) Group Two. Riot control agents, concertina wire, and other like 
military equipment to be employed in control of civil disturbances which 
is not included in Group One.
    (iii) Group Three. Firefighting resources (to include operating 
personnel); equipment of a protective nature (such as masks, helmets, 
body armor vests) and other equipment not included in Group One or Two 
(such as clothing, communications equipment, searchlights); and the use 
of DoD facilities.
    (2) Requests for personnel to be used in a direct law enforcement 
role are not within the purview of this part and must be made by the 
legislature or governor of a State in accordance with 10 U.S.C. 331. 
Pursuant to the Posse Comitatus Act, DoD operating personnel employed in 
connection with loaned equipment may not be used in a direct law 
enforcement role.
    (3) Repair parts and POL items are classified according to the group 
of the equipment for which the parts or POL are intended.
    (b) Approval of requests. (1) Requests for Group One military 
resources may be granted only with the personal approval of the DoD 
Executive Agent or, when designated by him for that purpose, the Under 
Secretary of the Army.
    (2) Requests for Group Two military resources may be granted only 
with the personal approval of the DoD Executive Agent, or the following 
individuals when designated by him for that purpose:
    (i) The Under Secretary of the Army;
    (ii) The Director and Deputy Director of Military Support; or
    (iii) A Task Force Commander employed at an objective area during a 
civil disturbance.
    (3) Requests for Group Three resources may be granted by Secretaries 
of the military departments, CINCs of unified and specified commands 
outside CONUS; or commanders of military installations or organizations 
who have been delegated such authority by the appropriate Service 
Secretary or CINC.
    (i) Installation commanders are authorized to provide emergency 
explosive ordnance disposal service in accordance with applicable 
regulations of respective military departments.
    (ii) The Director, Defense Supply Agency, is authorized to approve 
requests from subordinate agencies for firefighting assistance in 
connection with civil disturbances. Where installation fire departments 
have mutual aid agreements with nearby civil communities, the 
installation commander is authorized to provide emergency civilian or 
mixed civilian/military firefighting assistance. In the absence of a 
mutual aid agreement and when it is in the best interest of the United 
States, a commander with Group Three approval authority is authorized to 
provide emergency civilian or mixed civilian/military assistance in 
extinguishing fires and in preserving life or property from fire, within 
the vicinity of an installation. In either case, civilian firefighters 
may be used provided:
    (a) In civil disturbance situations where there is significant 
danger of physical harm to firefighters, the civilian employees 
volunteer for the assignment. (DoD civilian employees acting in this 
volunteer capacity are acting as Federal employees.)

[[Page 394]]

    (b) Firefighting equipment will not be used for riot control.
    (c) Civil authorities recognize that prior to the commitment of 
Federal forces to assist in restoring law and order, the protection of 
firefighting crews and equipment is the responsibility, in ascending 
order, of municipal, county, and State officials. Failure on the part of 
such authorities to recognize this responsibility and/or to provide 
adequate protection will be grounds for refusal to commit installation 
resources or for withdrawal of resources already committed.
    (4) Requests for Groups One, Two, or Three resources, and for 
renewal of outstanding loans, may be denied at any level in the chain of 
command down to and including commanders delegated Group Three approval 
authority.
    (c) Processing of requests. (1) All requests will be promptly 
submitted through channels to the appropriate approving authorities 
using the format established by the DoD Executive Agent.
    (2) Requests will be forwarded and processed in keeping with the 
degree of urgency dictated by the situation.
    (3) Requests received by personnel of Defense agencies will be 
referred to local military commanders for processing, except that DSA 
subordinate agencies will forward requests for firefighting assistance 
to DSA.
    (4) Request from civil law enforcement agencies for training 
assistance related to the control of civil disturbances will not be 
approved at the local level. Such requests should be referred to the 
nearest U.S. attorney, Department of Justice.
    (d) Reporting of requests. (1) Reports of all requests for military 
resources (approved, denied, or pending) will be prepared by all 
appropriate approving authorities, using the format established by the 
DoD Executive Agent, and forwarded through channels as follows:
    (i) To the military department headquarters, in the case of requests 
received in the CONUS by the four Services.
    (ii) To the DoD Executive Agent, in the case of requests for 
firefighting assistance received by the Defense Supply Agency.
    (iii) To the JCS, in the case of requests received by organizations 
or installations over which the commanders of the unified and specified 
commands exercise command authority.
    (2) Reports received by the military department headquarters and JCS 
will be transmitted to the DoD Executive Agent, who, in turn, will 
transmit information copies of all approved requests for Groups One and 
Two military resources to the General Counsel of the DoD and the Deputy 
Attorney General of the United States.
    (3) In addition, a weekly summary report of all requests will be 
compiled by the DoD Executive Agent, showing action taken (approved, 
denied, or pending) and submitted to the General Counsel of the DoD, the 
Assistant Secretary of Defense (Installations and Logistics), and the 
Deputy Attorney General of the United States. Negative summary reports 
are required.
    (4) The reporting requirements prescribed herein are assigned Report 
Control Symbol DD-A(AR)1112.



Sec. 215.10  Funding.

    (a) Reporting requirements to provide for financing costs associated 
with civil disturbance operations, to include reimbursement of military 
department expenditures, will be in accordance with DoD Instruction 
7200.9, ``Financing and Reporting Costs of Military Resources Used in 
Civil Disturbances,'' January 26, 1970,\4\ and DoD Executive Agent 
implementing instructions.
---------------------------------------------------------------------------

    \4\ Although this resolution has been placed in the Statutes at 
Large as Pub. L. 90-331, 82 Stat. 170, it has not been codified; it is 
set out in the notes to 18 U.S.C. 3056.
---------------------------------------------------------------------------

    (b) Military assistance (Groups One, Two, and Three military 
resources) provided to civil authorities, under the provisions of Sec. 
215.9, will be on a reimbursable or reclaimable basis as appropriate.



PART 216_MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS PROGRAM 
ACCESS TO INSTITUTIONS OF HIGHER EDUCATION--Table of Contents




Sec.
216.1 Purpose.

[[Page 395]]

216.2 Applicability.
216.3 Definitions.
216.4 Policy.
216.5 Responsibilities.
216.6 Information requirements.

Appendix A to Part 216--Military Recruiting Sample Letter of Inquiry
Appendix B to Part 216--ROTC Sample Letter of Inquiry.

    Authority: 10 U.S.C. 983.

    Source: 63 FR 56821, Oct. 23, 1998, unless otherwise noted.



Sec. 216.1  Purpose.

    This part:
    (a) Implements the National Defense Authorization Act of 1995 (108 
Stat. 2663),
    (b) Implements 10 U.S.C. 983, and
    (c) Implements the Omnibus Consolidated Appropriations Act, 1997 
(110 Stat. 3009).
    (d) Updates policy and responsibilities relating to the management 
of covered schools that have a policy of either denying, or effectively 
preventing military recruiting personnel entry to their campuses, access 
to their students, or access to student recruiting information.
    (e) Updates policy and responsibilities relating to the management 
of covered schools that have an anti-ROTC policy.



Sec. 216.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Combatant Commands, the Defense Agencies, and the DoD Field Activities 
(hereafter referred to collectively as ``the DoD components''). The 
policies herein also affect the Departments of Transportation, Labor, 
Health and Human Services, Education, and Related Agencies. The term 
``Military Services,'' as used herein, refers to the Army, the Navy, the 
Marine Corps, the Air Force, and the Coast Guard, including their 
Reserve or National Guard components. The term ``Related Agencies,'' as 
used herein, refers to the Armed Forces Retirement Home, the Corporation 
for National and Community Service, the Corporation for Public 
Broadcasting, the Federal Mediation and Conciliation Service, the 
Federal Mine Safety and Health Review Commission, the National 
Commission on Libraries and Information Science, the National Council on 
Disability, the National Education Goals Panel, the National Labor 
Relations Board, the National Mediation Board, the Occupational Safety 
and Health Review Commission, the Physician Payment Review Commission, 
the Prospective payment Assessment Commission, the Social Security 
Administration, the Railroad Retirement Board and the United States 
Institute of Peace.



Sec. 216.3  Definitions.

    (a) Anti-ROTC policy. A policy or practice whereby a covered school 
prohibits or in effect prevents the Secretary of Defense from 
maintaining, establishing, or efficiently operating a unit of the Senior 
ROTC at the covered school, or prohibits or in effect prevents a student 
at the covered school from enrolling in a Senior ROTC unit at another 
institution of higher education.
    (b) Covered school. An institution of higher education, or a 
subelement of an institution of higher education, subject to the 
following clarifications:
    (1) In the event of a determination (Sec. 216.5) affecting only a 
subelement of a parent institution (see Sec. 216.3(d)), the limitations 
on the use of funds (Sec. 216.4(a) and (b)) shall apply only to the 
subelement and not to the parent institution as a whole.
    (2) The limitations on the use of funds (Sec. 216.4(a) and (b)) 
shall not apply to any individual institution of higher education that 
is part of a single university system if that individual institution 
does not prevent entry to campus, access to students, or access to 
student recruiting information by military recruiters, or have an anti-
ROTC policy, even though another campus of the same system is affected 
by a determination under Sec. 216.5(a).
    (c) Student recruiting information. For those currently enrolled, 
the student's name, address, telephone listing, age (or year of birth), 
level of education (e.g., freshman, sophomore, or degree awarded for a 
recent graduate), and major.
    (d) Institution of higher education. A domestic college, university, 
or other

[[Page 396]]

institution (or subelement thereof) providing postsecondary school 
courses of study, including foreign campuses of such domestic 
institutions. The term includes junior colleges, community colleges, and 
institutions providing courses leading to undergraduate and post-
graduate degrees. The term does not include entities that operate 
exclusively outside the United States, its territories, and possessions. 
A subelement of an institution of higher education is a discrete 
(although not necessarily autonomous) organizational entity that may 
establish policies or practices affecting military recruiting and 
related actions (e.g., an undergraduate school, a law school, a medical 
school, or other graduate schools). For example, the School of Law of 
XYZ University is a subelement of its parent institution (XYZ 
University).
    (e) Student. An individual who is 17 years of age or older and is 
enrolled at a covered school.
    (f) Enrolled. Registered for a least one credit hour of academic 
credit at the covered school during the most-recent, current, or next 
term.
    (g) Military recruiters. Personnel of DoD whose current assignment 
or detail is to a recruiting activity of the DoD.
    (h) Pacifism. Opposition to war or violence, demonstrated by refusal 
to participate in military service.



Sec. 216.4  Policy.

    It is policy that:
    (a) Under 108 Stat. 2663 and 110 Stat. 3009, no funds available 
under appropriations acts for any fiscal year for the Departments of 
Defense, Transportation (with respect to military recruiting), Labor, 
Health and Human and Human Services, Education, and Related Agencies may 
be provided by contract or by grant (including a grant of funds to be 
available for student aid) to a covered school if the Secretary of 
Defense determines that the covered school has a policy or practice 
(regardless of when implemented) that either prohibits or in effect 
prevents the Secretary of Defense from obtaining, for military 
recruiting purposes, entry to campuses, access to students on campuses, 
or access to directory information on students (student recruiting 
information).
    (b) Under 110 Stat. 3009, no funds available under appropriations 
acts for any fiscal year for the Departments of Labor, Health and Human 
Services, Education, and Related Agencies may be provided by contract or 
grant (including a grant of funds to be available for student aid) to a 
covered school that has an anti-ROTC policy or practice (regardless of 
when implemented). Additionally, under 10 U.S.C. 983, no funds 
appropriated or otherwise available to the Department of Defense may be 
made obligated by contract or by grant to a covered school that has such 
a policy or practice.
    (c) The limitations established in paragraph (a) of this section, 
shall not apply to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has ceased the policies or practices defined in paragraph (a) of 
this section;
    (2) Has a long-standing policy of pacifism based on historical 
religious affiliation;
    (3) When not providing requested access to campuses or to students 
on campus, certifies that all employers are similarly excluded from 
recruiting on the premises of the covered school, or presents evidence 
that the degree of access by military recruiters is at least equal in 
quality and scope to that afforded to other employers;
    (4) When not providing any student recruiting information, certifies 
that such information is not maintained by the covered school; or that 
such information already has been provided to the Military Service 
concerned for that current semester, trimester, quarter, or other 
academic term, or within the past four months (for institutions without 
academic terms);
    (5) When not providing student recruiting information for specific 
students, certifies that each student concerned has formally requested 
the covered school to withhold this information from third parties;
    (6) Permits employers to recruit on the premises of the covered 
school only in response to an expression of student interest, and the 
covered school;

[[Page 397]]

    (i) Provides the Military Services with the same opportunities to 
inform the students of military recruiting activities as are available 
to other employers; or
    (ii) Certifies that too few students have expressed an interest to 
warrant accommodating military recruiters, applying the same criteria 
that are applicable to other employers; or
    (7) Is prohibited by the law of any State, or by the order of any 
State court, from allowing Federal military recruiting on campus. Such 
exemption does not apply to funds available to the Department of 
Defense, in accordance with 108 Stat. 2663.
    Note: This exemption terminated effective March 29, 1998, in 
accordance with 110 Stat. 3009.
    (d) The limitations established in paragraph (b) of this section, 
shall not apply to a covered school if the Secretary of Defense 
determines that the covered school:
    (1) Has ceased the policies or practices defined in paragraph (b) of 
this section;
    (2) Has a long-standing policy of pacifism based on historical 
religious affiliation;
    (3) Is prohibited by the law of any State, or by the order of any 
State court, from allowing Senior Reserve Officer Training Corps 
activities on campus. Such exemption does not apply to funds available 
to the Department of Defense, in accordance with 10 U.S.C. 983.
    Note: This exemption terminated effective March 29, 1998, in 
accordance with 110 Stat. 3009.
    (e) A covered school may charge for actual costs incurred in 
providing military recruiters access to student recruiting information, 
provided such charges are reasonable and customary; in this case, the 
school must explain to the military recruiter, within 15 days of a 
request by the recruiter, its method for determining costs, and its 
basis for concluding that such charges are reasonable and customary.
    (f) An evaluation to determine whether a covered school maintains a 
policy or practice covered by paragraph (a) of this section shall be 
undertaken when:
    (1) Military recruiting personnel cannot gain entry to campus, 
cannot obtain access to students on campus, or are denied access to 
student recruiting information (however, military recruiting personnel 
shall accommodate a covered school's reasonable preferences as to times 
and places for scheduling on-campus recruiting, to the same extent such 
preferences are applicable to employers, generally);
    (2) The costs being charged by the school for providing student 
recruiting information are believed by the military recruiter to be 
excessive, and the school does not provide information sufficient to 
support a conclusion that such charges are reasonable and customary; or
    (3) The covered school is unwilling to declare in writing, in 
response to an inquiry from a DoD component, that the covered school 
does not have a policy or practice of denying, and that it does not 
effectively prevent, the Secretary of Defense from obtaining for 
military recruiting purposes entry to campuses, access to students on 
campuses, or access to student recruiting information.
    (g) An evaluation to determine whether a covered school has an anti-
ROTC policy covered by paragraph (b) of this section shall be undertaken 
when:
    (1) A Secretary of a Military Department of designee cannot obtain 
permission to establish, maintain, or efficiently operate a unit of the 
Senior ROTC; or
    (2) Absent a Senior ROTC unit at the covered school, students cannot 
obtain permission from a covered school to participate, or are 
effectively prevented from participating, in a unit of the Senior ROTC 
at another institution of higher education.



Sec. 216.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Force Management Policy, 
under the Under Secretary of Defense for Personnel and Readiness, shall:
    (1) Not later than 45 days after receipt of the information 
described in paragraph (b)(3) of this section:
    (i) Make a final determination under 108 Stat. 2663, 10 U.S.C., 
section 983; and 110 Stat. 3009 and/or this part, and notify any 
affected school of that determination along with the basis, and that it 
is therefore ineligible to receive

[[Page 398]]

prescribed funds as a result of that determination.
    (ii) Disseminate to Federal agencies affected by 110 Stat. 3009, to 
the DoD components, and to the General Services Administration (GSA) the 
names of covered schools identified under paragraph (a)(1)(i) of this 
section, and the basis of the determination.
    (iii) Disseminate the names of covered schools identified under 
paragraph (a)(1)(i) of this section, to the Secretary of Education and 
to the Committee on Armed Services of the Senate and the Committee on 
National Security of the House of Representatives.
    (iv) Inform the applicable school identified under paragraph 
(a)(1)(i) of this section, that its funding eligibility may be restored 
if the school provides sufficient new information that the basis for the 
determination under paragraph (a)(1)(i) of this section no longer 
exists.
    (2) Not later than 45 days after receipt of a covered school's 
request to restore its eligibility:
    (i) Determine whether the funding status of the covered school 
should be changed, and notify the applicable school of that 
determination.
    (ii) Notify the parties reflected in paragraphs (a)(1)(ii) and (iii) 
of this section when a determination of funding ineligibility (paragraph 
(a)(1)(i) of this section) has been rescinded.
    (3) Publish in the Federal Register each determination of the 
Assistant Secretary of Defense for Force Management Policy that a 
covered school is ineligible for contracts and grants made under 108 
Stat. 2663, 10 U.S.C., section 983, and 110 Stat. 3009 and/or this part.
    (4) Publish in the Federal Register at least once every six months a 
list of covered schools that are ineligible for contracts and grants by 
reason of a determination of the Secretary of Defense under 108 Stat. 
2663, 10 U.S.C., section 983, and 110 Stat. 3009 and/or this part.
    (b) The Secretaries of the Military Departments shall:
    (1) Identify covered schools that, by policy or practice, deny 
military recruiting personnel entry to the campus(es) of those schools, 
access to their students, or access to student recruiting information.
    (i) When requests by military recruiters to schedule recruiting 
visits or to obtain student recruiting information are unsuccessful, the 
Military Service concerned shall seek written confirmation of the 
school's present policy from the head of the school through a letter of 
inquiry. A letter similar to that shown in appendix A of this part shall 
be used, but it should be tailored to the situation presented. If 
written confirmation cannot be obtained, oral policy statements or 
attempts to obtain such statements from an appropriate official of the 
school shall be documented. A copy of the documentation shall be 
provided to the covered school, which shall be informed of its 
opportunity to forward clarifying comments to accompany the submission 
to the ASD(FMP), and shall be provided 30 days to offer such clarifying 
comments.
    (ii) When a request for student recruiting information is not 
fulfilled within a reasonable period, normally 30 days, a letter similar 
to that shown in appendix A of this part shall be used to communicate 
the problem to the school, and the inquiry shall be managed as described 
in Sec. 216.5.(b)(1)(i). Schools may stipulate that requests for 
student recruiting information shall be in writing.
    (2) Identify covered schools that, by policy or practice, deny 
establishment, maintenance, or efficient operation of a unit of the 
Senior ROTC, or deny students permission to participate, or effectively 
prevent students from participating in a unit of the Senior ROTC at 
another institution of higher education. The Military Service concerned 
shall seek written confirmation of the school's policy from the head of 
the school through a letter of inquiry. A letter similar to that shown 
in appendix B of this part shall be used, but it should be tailored to 
the situation presented. If written confirmation cannot be obtained, 
oral policy statements or attempts to obtain such statements from an 
appropriate official of the school shall be documented. A copy of the 
documentation shall be provided to the covered school, which shall be 
informed of its opportunity to forward clarifying comments to accompany 
the

[[Page 399]]

submission to the ASD(FMP), and shall be provided 30 days to offer such 
clarifying comments.
    (3) Evaluate responses to the letter of inquiry, and other such 
evidence obtained in accordance with this part, and submit to the 
ASD(FMP) the names and addresses of covered schools that are believed to 
be in violation of policies established in Sec. 216.4. Full 
documentation shall be furnished to the ASD(FMP) for each such covered 
school, including the school's formal response to the letter of inquiry, 
documentation of any oral response, or evidence showing that attempts 
were made to obtain either written confirmation or an oral statement of 
the school's policies.
    (c) The Heads of the DoD components shall:
    (1) Provide the ASD(FMP) with the names and addresses of covered 
schools identified as a result of evaluation(s) required under 
Sec. Sec. 216.4(f) and (g).
    (2) Take immediate action to deny obligations of DoD Funds to 
covered schools identified under paragraph (a)(1)(i) of this section, 
and to restore eligibility of covered schools identified under paragraph 
(a)(2) of this section.



Sec. 216.6  Information requirements.

    The information requirements identified at Sec. Sec. 216.5 (b) and 
(c)(1) have been assigned Report Control Symbol P&R-(AR)-2038 in 
accordance with DoD 8910.1-M.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

  Appendix A to Part 216--Military Recruiting Sample Letter of Inquiry

                 (Tailor letter to situation presented)

Dr. John Doe
President
ABC College
Anywhere, USA 12345-9876

    Dear Dr. Doe: I understand that military recruiting personnel (are 
unable to recruit on the campus of ABC College) (have been refused 
student recruiting information \1\ on ABC College students for the 
purpose of military recruiting) by a policy or practice of the College. 
Current law \2\ prohibits funds by grant or contract (includng a grant 
of funds to be available for student aid) from appropriations of the 
Departments of Defense, Transportation (with respect to military 
recruiting), Labor, Health and Human Services, Education, and Related 
Agencies to schools that have a policy or practice of denying military 
recruiting personnel entry to campuses, access to students on campuses, 
or access to student recruiting information. Implementing regulations 
are codified at 32 Code of Federal Regulations, part 216.
---------------------------------------------------------------------------

    \1\ Student recruiting information refers to a student's name, 
address, telephone listing, age (or year or birth), level of education 
(e.g., freshman, sophomore, or degree awarded for a recent graduate), 
and major.
    \2\ 108 Stat. 2663 and 110 Stat. 3009.
---------------------------------------------------------------------------

    This letter provides you an opportunity to clarify your 
institution's policy regarding military recruiting on the campus of ABC 
College. In that regard, I request, within the next 30 days, a written 
policy statement of the institution with respect to access to campus and 
students, and to student recruiting information by military recruiting 
personnel.
    Your response should highlight any difference between access for 
military recruiters and access for recruiting by other potential 
employers.
    Based on this information, Department of Defense officials will make 
a determination as to your institution's eligiblity to receive funds by 
grant or contract. That decision may affect eligiblity for funding from 
appropriations of the Departments of Defense, Transportation, Labor, 
Health and Human Services, Education, and Related Agencies. Should it be 
determined that ABC College is in violation of the aforementioned 
statutes, such funding would be stopped, and the school would be 
ineligible to receive such funds in the future.
    I regret that this action may have to be taken. Successful 
recruiting requires that Department of Defense recruiters have 
reasonable access to students on the campuses of colleges and 
universities, and at the same time have effective relationships with the 
officials and student bodies of those institutions. I hope it will be 
possible to (define the correction to the aforementioned problem 
area(s). I am available to answer any questions.

    Sincerely,

          Appendix B to Part 216--ROTC Sample Letter of Inquiry

                 (Tailor Letter to Situation Presented)

Dr. Jane Smith
President
ABC College
Anywhere, USA 12345-9876

    Dear Dr. Smith: I understand that ABC College has (refused a request 
from a Military Department to establish a Senior ROTC

[[Page 400]]

unit at your institution) (refused to continue existing ROTC programs at 
your institution) (prevented students from participation at a Senior 
ROTC program at another institution) by a policy or practice of the 
College. Current law \1\ prohibits funds by grant or contract (including 
a grant of funds to be available for student aid) from appropriations of 
the Departments of Defense, Labor, Health and Human Services, Education, 
and Related Agencies to schools that have a policy or practice 
prohibiting or preventing the Secretary of Defense from maintaining, 
establishing, or efficiently operating a Senior ROTC unit. Those 
statutes also bar agency funds for schools that prohibit or prevent a 
student from enrolling in an ROTC unit at another institution of higher 
education. Implementing regulations are codified at 32 Code of Federal 
Regulations, part 216.
---------------------------------------------------------------------------

    \1\ 10 U.S.C. 983 and 110 Stat. 3009.
---------------------------------------------------------------------------

    This letter provides you an opportunity to clarify your 
institution's policy regarding ROTC access on the campus of ABC College. 
In that regard, I request, within the next 30 days, a written statement 
of the institution with respect to (define the problem area(s)).
    Based on this information, Department of Defense officials will make 
a determination as to your institution's eligibility to receive funds by 
grant or contract. The decision may affect eligibility for funding from 
appropriations of the Departments of Defense, Labor, Health and Human 
Services, Education, and Related Agencies. Should it be determined that 
ABC College is in violation of the aforementioned statutes, such funding 
would be stopped, and the school would be ineligible to receive such 
funds in the future.
    I regret that this action may have to be taken. Successful officer 
procurement requires that the Department of Defense maintain a strong 
ROTC program. I hope it will be possible to (define the correction to 
the aforementioned problem area(s)). I am available to answer any 
questions.



PART 218_GUIDANCE FOR THE DETERMINATION AND REPORTING OF NUCLEAR RADIATION 

DOSE FOR DoD PARTICIPANTS IN THE ATMOSPHERIC NUCLEAR TEST PROGRAM (1945-1962)
--Table of Contents




Sec.
218.1 Policies.
218.2 General procedures.
218.3 Dose reconstruction methodology.
218.4 Dose estimate reporting standards.

    Authority: Pub. L. 98-542, 98 Stat. 2725 (38 U.S.C. 354 Note.)

    Source: 50 FR 42521, Oct. 21, 1985, unless otherwise noted.



Sec. 218.1  Policies.

    (a) Upon request by the Veterans Administration in connection with a 
claim for compensation, or by a veteran or his or her representative, 
available information shall be provided by the applicable Military 
Service which shall include all material aspects of the radiation 
environment to which the veteran was exposed and shall include inhaled, 
ingested and neutron doses. In determining the veteran's dose, initial 
neutron, initial gamma, residual gamma, and internal (inhaled and 
ingested) alpha, beta, and gamma shall be considered. However, doses 
will be reported as gamma dose, neutron dose, and internal dose. The 
minimum standards for reporting dose estimates are set forth in Sec. 
218.4.
    (b) The basic means by which to measure dose from exposure to 
ionizing radiation is the film badge. Of the estimated 220,000 
Department of Defense participants in atmospheric nuclear weapons tests, 
about 145,000 have film badge dose data available. The information 
contained in the records has been reproduced in a standard format and is 
being provided to each military service, which can use the film badge 
dose data to obtain a radiation dose for a particular individual from 
that service. This is done upon request from the individual, the 
individual's representative, the Veterans Administration, or others as 
authorized by the Privacy Act. Upon request, the participant or his or 
her authorized representative will be informed of the specific 
methodologies and assumptions employed in estimating his or her dose. 
The participant can use this information to obtain independent options 
regarding exposure.
    (c) From 1945 through 1954, the DoD and Atomic Energy Commission 
(AEC) policy was to issue badges only to a portion of the personnel in a 
homogeneous unit such as a platoon of a battalion combat team, Naval 
ship or aircraft crew. Either one person was badged in a group 
performing the same function, or only personnel expected to be exposed 
to radiation were badged. After 1954, the policy was to badge all

[[Page 401]]

personnel. But, some badges were unreadable and some records were lost 
or destroyed, as in the fire at the Federal Records Center in St. Louis. 
For these reasons the Nuclear Test Personnel Review (NTPR) Program has 
focused on determining the radiation dose for those personnel (about 
75,000) who were not issued film badges or for whom film badge records 
are not available.
    (d) In order to determine the radiation dose to individuals for whom 
film badge data are not available, alternative approaches are used as 
circumstances warrant. All approaches require investigation of 
individual or group activities and their relationship to the 
radiological environment. First, if it is apparent that personnel were 
not present in the radiological environment and had no other potential 
for exposure, then their dose is zero. Second, if some members of a 
group had film badge readings and others did not--and if all members had 
a common relationship with the radiological enviroment--then doses for 
unbadged personnel can be calculated. Third, where sufficient badge 
readings or a common relationship to the radiological environment does 
not exist, dose reconstruction is performed. This involves correlating a 
unit's or individual's detailed activities with the quantitively 
determined radiological environment. The three approaches are described 
as follows:
    (1) Activities of an individual or his unit are researched for the 
period of participation in an atmospheric nuclear test. Unit locations 
and movements are related to areas of radiation. If personnel were far 
distant from the nuclear detonation(s), did not experience fallout or 
enter a fallout area, and did not come in contact with radioactive 
samples or contaminated objects, they were judged to have received no 
dose.
    (2) Film badge data from badged personnel may be used to estimate 
individual doses for unbadged personnel. First, a group of participants 
must be identified that have certain common characteristics and a 
similar potential for exposure to radiation. Such characteristics are: 
Individuals must be doing the same kind of work, referred to as 
activity, and all members of the group must have a common relationship 
to the radiological environment in terms of time, location or other 
factors. Identification of these groups is based upon research of 
historical records, technical reports or correspondence. A military unit 
may consist of several groups or several units may comprise a single 
group. Using proven statistical methods, the badge data for each group 
is examined to determine if it adequately reflects the entire group, is 
valid for use in statistical calculations, or if the badge data indicate 
the group should be sub-divided into smaller groups. For a group that 
mets the tests described above, the mean dose, variance and confidence 
limits are determined. An estimated dose equal to 95% probability that 
the actual exposure did not exceed the estimate is assigned to unbadged 
personnel. This procedure is statistically sound and will insure that 
unbadged personnel are assigned doses much higher than the average/mean 
for the group.
    (3) Dose reconstruction is performed if film badge data are 
unavailable for all or part of the period or radiation exposure, if film 
badge data are partially available but cannot be used statistically for 
calculations, special activities are indicated for specific individuals, 
or if other types of radiation exposures are indicated. In dose 
reconstruction, the conditions of exposure are reconstructed 
analytically to arrive at a radiation dose. Such reconstruction is not a 
new concept; it is standard scientific practice used by health 
physicists when the circumstances of a radiation exposure require 
investigation. The underlying method is in each case the same. The 
radiation environment is characterized in time and space, as are the 
activities and geometrical position of the individual. Thus, the rate at 
which radiation is accrued is determined throughout the time of 
exposure, from which the total dose is integrated. An uncertainty 
analysis of the reconstruction provides a calculated mean dose with 
confidence limits. The specific method used in a dose reconstruction 
depends on what type of data are available to provide the required 
characterizations as well as the nature of the radiation

[[Page 402]]

environment. The radiation environment is not limited to the gamma 
radiation that would have been measured by a film badge, but also 
includes neutron radiation for personnel sufficiently close to a nuclear 
detonation, as well as beta and alpha radiation (internally) for 
personnel whose activities indicate the possibility of inhalation or 
ingestion of radioactive particles.



Sec. 218.2  General procedures.

    The following procedures govern the approach taken in dose 
determination:
    (a) Use individual film badge data where available and complete, for 
determining the external gamma dose.
    (b) Identify group activities and locations for period(s) of 
possible exposure.
    (c) Qualitatively assess the radiation environment in order to 
delineate contaminated areas. If no activities occurred in these areas, 
and if no other potential for exposure exists, a no dose received 
estimate is made.
    (d) If partial film badge data are available, define group(s) of 
personnel with common activities and relationships to radiation 
environment.
    (e) Using standard statistical methods, verify from the distribution 
of film badge readings whether the badged sample adequately represents 
the intended group.
    (f) Calculate the mean external gamma dose, with variance and 
confidence limits, for each unbadged population. Assign a dose equal to 
95% probability that actual exposure did not exceed the assigned dose.
    (g) If badge data is not available for a statistical calculation, 
conduct a dose reconstruction.
    (h) For dose reconstruction, define radiation environment through 
use of all available scientific data, e.g., measurements of radiation 
intensity, decay, radioisotopic composition.
    (i) Quantitatively relate activities shielding, position, and other 
factors to radiation environment as a function of time. Integrate dose 
throughout period of exposure.
    (j) Where possible, calculate mean dose with confidence limits; 
otherwise calculate best estimate dose or, if data are too sparse, upper 
limit dose.
    (k) Compare calculations with available film badge records to verify 
the calculated doses. Whether or not film badge data is available, 
calculate initial and internal doses where identified as a meaningful 
contribution to the total dose.



Sec. 218.3  Dose reconstruction methodology.

    (a) Concept. The specific methodology consists of the 
characterization of the radiation environments to which participants 
through all relevant activities, were exposed. The environments, both 
initial and residual radiation are corrected with the activities of 
participants to determine accrued doses due to initial radiation, 
residual radiation and/or inhaled/ingested radioactive material, as 
warranted by the radiation environment and the specific personnel 
activities. Due to the range of activities, times, geometries, 
shielding, and weapon characteristics, as well as the normal spread in 
the available data pertaining to the radiation environment, an 
uncertainty analysis is performed. This analysis quantifies the 
uncertainties due to time/space variations, group size, and available 
data. Due to the large amounts of data, an automated (computer-assisted) 
procedure is often used to facilitate the data-handling and the dose 
integration, and to investigate the sensitivity to variations in the 
parameters used. The results of the gamma data calculations are then 
compared with film badge data as they apply to the specific period of 
the film badges and to the comparable activities of the exposed 
personnel, in order to validate the procedure and to identify personnel 
activities that could have led to atypical doses. Radiation dose from 
neutrons and dose commitments due to inhaled or ingested radioactive 
material are not detected by film badges. Where required, these values 
are calculated and recorded separately.
    (b) Characterization of the radiological environment. (1) This step 
describes and defines the radiological conditions as a function of time 
for all locations of concern, that is, where personnel were positioned 
or where personnel activities took place. The radiation environment is 
divided into two standard categories--initial radiation and residual 
radiation.

[[Page 403]]

    (2) The initial radiation environment results from several types of 
gamma and neutron emissions. Prompt neutron and gamma radiation are 
emitted at the time of detonation, while delayed neutrons and fission-
product gamma, from the decay of radioactive products in the fireball, 
continue to be emitted as the fireball rises. In contrast to these 
essentially point sources of radiation, there is gamma radiation from 
neutron interactions with air and soil, generated within a fraction of a 
second. Because of the complexity of these radiation sources and their 
varied interaction properties with air and soil, it is necessary to 
obtain solutions of the Boltzmann radiation transport equation. The 
radiation environment thus derived includes the effects of shot-specific 
parameters such as weapon type and yield, neutron and gamma output, 
source and target geometry, and atmospheric conditions. The calculated 
neutron and gamma radiation environments are checked for consistency 
with existing measured data as available. In those few cases displaying 
significant discrepancies that cannot be resolved, an environment based 
on extrapolation of the data is used if it leads to a larger calculated 
dose.
    (3) In determining the residual radiation environment, all possible 
sources are considered including radioactive clouds, radiation that may 
have been encountered from other tests, and radioactive debris that may 
have been deposited in water during oceanic tests. The residual 
radiation environment is divided into two general components--neutron-
activated material that subsequently emits, over a period of time, beta 
and gamma radiation; and radioactive debris from the fission reaction or 
from unfissioned materials that emit alpha, beta, and gamma radiation. 
Because residual radiation decays, the characterization of the residual 
environment is defined by the radiation intensity as a function of type 
and time. Radiological survey data are used to determine specific 
intensities at times of personnel exposure. Interpolation and 
extrapolation are based on known decay characteristics of the individual 
materials that comprise the residual contamination. In those rare cases 
where insufficient radiation data exist to adequately define the 
residual environment, source data are obtained from the appropriate 
weapon design laboratory and applied in standard radiation transport 
codes to determine the initial radiation at specific distances from the 
burst. This radiation, together with material composition and 
characteristics, leads to description of the neutron-activated field for 
each location and time of interest. In all cases observed data, as 
obtained at the time of the operation, are used to calibrate the 
calculations.
    (c) Activities of participants. This step uses all official records, 
augmented by personnel interviews where gaps exist, to depict a scenario 
of activities for each individual or definable group. When a dose 
reconstruction is performed for a specific individual, information 
available from the individual is accepted unless demonstrably 
inaccurate. For military units, whose operations were closely controlled 
and further constrained by radiological safety monitors, the scenario is 
usually well defined. The same is true for observers, who were 
restricted to specific locations both during and after the nuclear 
burst. Ships' locations and activities are usually known with a high 
degree of precision from deck logs. Aircraft tracks and altitudes are 
also usually well defined. Personnel engaged in scientific experiments 
often kept logs of their activities; moreover, the locations of their 
experiments are usually a matter of record. Where the records are 
insufficiently complete for the degree of precision required to 
determine radiation exposure, participants' comments are used and 
reasonable judgements are made to further the analysis. Possible 
variations in the activities, as well as possible individual deviations 
from group activities, with respect to both time and location, are 
considered in the uncertainty analysis of the radiation dose 
calculations.
    (d) Calculation of dose. (1) The initial radiation doses to close-in 
personnel (who were normally positioned in trenches at the time of 
detonation) are calculated from the above-ground environment by 
simulating the radiation transport into the trenches. Various 
calculational approaches, standard in health physics, are employed to 
relate

[[Page 404]]

in-trench to above-trench doses for each source of radiation. Detailed 
modeling of the human body, in appropriate postures in the trench, is 
performed to calculate the gamma dose that would have been recorded on a 
film badge and the maximum neutron dose. The neutron, neutron-generated 
gamma, and prompt gamma doses are accrued during such a short time 
interval that the posture in a trench could not be altered significantly 
during this exposure. The fission-product gamma dose, however, is 
delivered over a period of many seconds. Therefore, the possibility of 
individual reorientation (e.g., standing up) in the trench is 
considered.
    (2) The calculation of the dose from residual radiation follows from 
the characterized radiation environment and personnel activities. 
Because radiation intensities are calculated for a field (i.e., in two 
spatial dimensions) and in time, the radiation intensity is determinable 
for each increment of personnel activity regardless of direction or at 
what time. The dose from exposure to a radiation field is obtained by 
summing the contribution (product of intensity and time) to dose at each 
step. The dose calculated from the radiation field does not reflect the 
shielding of the film badge afforded by the human body. This shielding 
has been determined for pertinent body positions by the solution of 
radiation transport equations as applied to a radiation field. 
Conversion factors are used to arrive at a calculated film badge dose, 
which not only facilitates comparison with film badge data, but serves 
as a substitute for an unavailable film badge reading.
    (3) The calculation of the dose from inhaled or ingested 
radioactivity primarily involves the determination of what radiosotopes 
entered the body in what quantity. Published conversion factors are then 
applied to these data to arrive at the radiation dose and future dose 
commitments to internal organs. Inhalation or ingestion of radioactive 
material is calculated from the radioactive environment and the 
processes of making these materials inhalable or ingestible. Activities 
and processes that cause material to become airborne (such as wind, 
decontamination or traffic) are used with empirical data on particle 
lofting to determine airborne concentrations under specific 
circumstances. Volumetric breathing rates and durations of exposure are 
used to calculate the total material intake. Data on time-dependent 
weapon debris isotopic composition and the above-mentioned conversion 
factors are used to calculate the dose commitment to the body and to 
specific body organs.
    (e) Uncertainty analysis. Because of the uncertainties associated 
with the radiological data or calculations used in the absence of data, 
as well as the uncertainties with respect to personnel activities, 
confidence limits are determined where possible for group dose 
calculations. The uncertainty analysis quantifies the errors in 
available data or in the model used in the absence of data. Confidence 
limits are based on the uncertainty of all relevant input parameters, 
and thus vary with the quality of the input data. They also consider the 
possible range of doses due to the size of the exposure group being 
examined. Typical sources of error include orientation of the weapons, 
specific weapon yields, instrument error, fallout intensity data, 
time(s) at which data were obtained, fallout decay rate, route of 
personnel movements, and arrival/stay times for specific activities.
    (f) Comparison with film badge records. (1) Calculations of gamma 
dose were compared with film badge records for two military units at 
Operation PLUMBBOB to initially validate this methodology. Where all 
parameters relating to radiation exposure were identified, direct 
comparison of gamma dose calculations with actual film badge readings 
was possible. Resultant correlations provided high confidence in the 
methodology.
    (2) Film badge data may, in some cases, be unrepresentative of the 
total exposure of a given individual or group; nevertheless, they are 
extremely useful for direct comparison of incremental doses for specific 
periods, e.g., validating the calculations for the remaining, unbadged 
period of exposure. Moreover, a wide distribution of film badge data 
often leads to more definitive personnel grouping for dose calculations

[[Page 405]]

and to further investigation of the reason(s) for such distribution. In 
all cases, personnel film badge data are not used in the dose 
calculations, but rather are used solely for comparison with and 
validation of the calculations. For dose reconstructions accomplished to 
date, comparison has been favorable and within the confidence limits of 
the calculations.



Sec. 218.4  Dose estimate reporting standards.

    The following minimum standards for reporting dose estimates shall 
be uniformly applied by the Military Services when preparing information 
in response to an inquiry by the Veterans Administration, in connection 
with a claim for compensation, or by a veteran or his or her 
representative. The information shall include all material aspects of 
the radiation environment to which the veteran was exposed and shall 
include inhaled, ingested, and neutron doses, when applicable. In 
determining the veteran's dose, initial neutron, initial gamma, residual 
gamma, and internal (inhaled and ingested) alpha, beta, and gamma shall 
be considered. However, doses will be reported as gamma dose, neutron 
dose, and internal dose. To the extent to which the information is 
available, the responses will address the following questions:
    (a) Can it be documented that the veteran was a test participant? If 
so, what tests did he attend and what were the specifics of these tests 
(date, time, yield (unless classified) type, location and other relevant 
details)?
    (b) What unit was the man in? What were the mission and activities 
of the units at the test?
    (c) To the extent to which the available records indicate, what were 
his duties at the test?
    (d) Can you corroborate the specific information relevant to the 
potential exposure provided by the claimant to the Veterans 
Administration and forwarded to the Department of Defense? What is the 
impact of these specific activities on the claimant's reconstructed 
dose?
    (e) Is there any recorded radiation exposure for the individual? 
Does this recorded exposure cover the full period of test participation? 
What are the uncertainties associated with the recorded film badge dose?
    (f) If recorded dosimetry data is unavailable or incomplete, what is 
the dose reconstruction for the most probable dose, with error limits, 
if available?
    (g) Is there evidence of a neutron or internal exposure? What is the 
reconstruction?

Upon request, the participant or his or her authorized representative 
will be informed of the specific methodologies and assumptions employed 
in estimating his or her dose.



PART 219_PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
219.101 To what does this policy apply?
219.102 Definitions.
219.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
219.104-219.106 [Reserved]
219.107 IRB membership.
219.108 IRB functions and operations.
219.109 IRB review of research.
219.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
219.111 Criteria for IRB approval of research.
219.112 Review by institution.
219.113 Suspension or termination of IRB approval of research.
219.114 Cooperative research.
219.115 IRB records.
219.116 General requirements for informed consent.
219.117 Documentation of informed consent.
219.118 Applications and proposals lacking definite plans for 
          involvement of human subjects.
219.119 Research undertaken without the intention of involving human 
          subjects.
219.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
219.121 [Reserved]
219.122 Use of Federal funds.
219.123 Early termination of research support: Evaluation of 
          applications and proposals.
219.124 Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28021, June 18, 1991, unless otherwise noted.

[[Page 406]]



Sec. 219.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 
219.102(e), must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in Sec. 
219.102(e) must be reviewed and approved, in compliance with Sec. 
219.101, Sec. 219.102, and Sec. 219.107 through Sec. 219.117 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and
    (ii) Any disclosure of the human subjects' responses outside the 
research could reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or
    (ii) Federal statute(s) require(s) without exception that the 
confidentiality of the personally identifiable information will be 
maintained throughout the research and thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;
    (iii) Possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies,
    (i) If wholesome foods without additives are consumed or
    (ii) If a food is consumed that contains a food ingredient at or 
below the level and for a use found to be safe, or agricultural chemical 
or environmental contaminant at or below the level found to be safe, by 
the Food and Drug Administration or approved by

[[Page 407]]

the Environmental Protection Agency or the Food Safety and Inspection 
Service of the U.S. Department of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
(An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.) In these circumstances, if a 
department or agency head determines that the procedures prescribed by 
the institution afford protections that are at least equivalent to those 
provided in this policy, the department or agency head may approve the 
substitution of the foreign procedures in lieu of the procedural 
requirements provided in this policy. Except when otherwise required by 
statute, Executive Order, or the department or agency head, notices of 
these actions as they occur will be published in the Federal Register or 
will be otherwise published as provided in department or agency 
procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Human Research 
Protections, Department of Health and Human Services (HHS), or any 
successor office, and shall also publish them in the Federal Register or 
in such other manner as provided in department or agency procedures.\1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, subpart C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28021, June 18, 1991, as amended at 56 FR 29756, June 28, 
1991; 70 FR 36328, June 23, 2005]



Sec. 219.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.

[[Page 408]]

    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a context in which an individual can 
reasonably expect that no observation or recording is taking place, and 
information which has been provided for specific purposes by an 
individual and which the individual can reasonably expect will not be 
made public (for example, a medical record). Private information must be 
individually identifiable (i.e., the identity of the subject is or may 
readily be ascertained by the investigator or associated with the 
information) in order for obtaining the information to constitute 
research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 219.103  Assuring compliance with this policy--research conducted 
or supported by any Federal Department or Agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for federalwide use by that office. When the existence of an 
HHS-approved assurance is accepted in lieu of requiring submission of an 
assurance, reports (except certification) required by this policy to be 
made to department and agency heads shall also be made to the

[[Page 409]]

 Office for Human Research Protections, HHS, or any successor office.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 219.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord with Sec. 219.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership 
shall be reported to the Office for Human Research Protections, HHS, or 
any successor office.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.

[[Page 410]]

    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 219.101 (b) or (i). An institution with an approved assurance 
shall certify that each application or proposal for research covered by 
the assurance and by Sec. 219.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 219.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28021, June 18, 1991, as amended at 56 FR 29756, June 28, 
1991; 70 FR 36328, June 23, 2005]



Sec. Sec. 219.104-219.106  [Reserved]



Sec. 219.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the members, including consideration of 
race, gender, and cultural backgrounds and sensitivity to such issues as 
community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who are 
knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.

[[Page 411]]



Sec. 219.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 219.103(b)(4) and, to the extent required by, Sec. 219.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec. 
219.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 219.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 219.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 219.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 219.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 219.110  Expedited review procedures for certain kinds of research 

involving no more than minimal risk, and for minor changes in approved 
research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Human Research Protections, HHS, or any successor office.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.

Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of the IRB. In reviewing the 
research, the reviewers may exercise all of the authorities of the IRB 
except that the reviewers may not disapprove the research. A research 
activity may be disapproved only after review in accordance with the 
non-expedited procedure set forth in Sec. 219.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or

[[Page 412]]

choose not to authorize an institution's or IRB's use of the expedited 
review procedure.

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 219.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized:
    (i) By using procedures which are consistent with sound research 
design and which do not unnecessarily expose subjects to risk, and
    (ii) Whenever appropriate, by using procedures already being 
performed on the subjects for diagnostic or treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 219.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 219.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 219.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 219.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 219.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency

[[Page 413]]

head, an institution participating in a cooperative project may enter 
into a joint review arrangement, rely upon the review of another 
qualified IRB, or make similar arrangements for avoiding duplication of 
effort.



Sec. 219.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is Sec. 
219.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 219.103(b)(4) and Sec. 219.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 219.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 219.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution or 
its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to

[[Page 414]]

whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit of service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;
    (iii) Possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 219.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a

[[Page 415]]

written consent form approved by the IRB and signed by the subject or 
the subject's legally authorized representative. A copy shall be given 
to the person signing the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 219.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 219.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject will be asked 
whether the subject wants documentation linking the subject with the 
research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.

In cases in which the documentation requirement is waived, the IRB may 
require the investigator to provide subjects with a written statement 
regarding the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 219.118  Applications and proposals lacking definite plans for 
involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award may be made. However, except for research exempted 
or waived under Sec. 219.101 (b) or (i), no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the department or 
agency.



Sec. 219.119  Research undertaken without the intention of involving 
human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.

[[Page 416]]



Sec. 219.120  Evaluation and disposition of applications and proposals 

for research to be conducted or supported by a Federal Department or 
Agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec. 219.121  [Reserved]



Sec. 219.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 219.123  Early termination of research support: Evaluation of 
applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragarph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 219.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 220_COLLECTION FROM THIRD PARTY PAYERS OF REASONABLE CHARGES FOR 
HEALTHCARE SERVICES--Table of Contents




Sec.
220.1 Purpose and applicability.
220.2 Statutory obligation of third party payer to pay.
220.3 Exclusions impermissible.
220.4 Reasonable terms and conditions of health plan permissible.
220.5 Records available.
220.6 Certain payers excluded.
220.7 Remedies and procedures.
220.8 Reasonable charges.
220.9 Rights and obligations of beneficiaries.
220.10 Special rules for Medicare supplemental plans.
220.11 Special rules for automobile liability insurance and no-fault 
          automobile insurance.
220.12 [Reserved] organizations.
220.13 Special rules for workers' compensation programs.
220.14 Definitions.

    Authority: 5 U.S.C. 301; 10 U.S.C. 1095.

    Source: 55 FR 21748, May 29, 1990, unless otherwise noted.



Sec. 220.1  Purpose and applicability.

    (a) This part implements the provisions of 10 U.S.C. 1095, 1097b(b), 
and 1079b. In general, 10 U.S.C. 1095 establishes the statutory 
obligation of third party payers to reimburse the United States the 
reasonable charges of healthcare services provided by facilities of the 
Uniformed Services to covered beneficiaries who are also covered

[[Page 417]]

by a third party payer's plan. Section 1097b(b) elaborates on the 
methods for computation of reasonable charges. Section 1079b addresses 
charges for civilian patients who are not normally beneficiaries of the 
Military Health System. This part establishes the Department of Defense 
interpretations and requirements applicable to all healthcare services 
subject to 10 U.S.C. 1095, 1097b(b), and 1079b.
    (b) This part applies to all facilities of the Uniformed Services; 
the Department of Transportation administers this part with respect to 
facilities to the Coast Guard, not the Department of Defense.
    (c) This part applies to pathology services provided by the Armed 
Forces Institute of Pathology. However, in lieu of the rules and 
procedures otherwise applicable under this part, the Assistant Secretary 
of Defense (Health Affairs) may establish special rules and procedures 
under the authority of 10 U.S.C. 176 and 177 in relation to cooperative 
enterprises between the Armed Forces Institute of Pathology and the 
American Registry of Pathology.

[67 FR 57740, Sept. 12, 2002]



Sec. 220.2  Statutory obligation of third party payer to pay.

    (a) Basic rule. Pursuant to 10 U.S.C. 1095(a)(1), a third party 
payer has an obligation to pay the United States the reasonable charges 
for healthcare services provided in or through any facility of the 
Uniformed Services to a covered beneficiary who is also a beneficiary 
under the third party payer's plan. The obligation to pay is to the 
extent that the beneficiary would be eligible to receive reimbursement 
or indemnification from the third party payer if the beneficiary were to 
incur the costs on the beneficiary's own behalf.
    (b) Application of cost shares. If the third party payer's plan 
includes a requirement for a deductible or copayment by the beneficiary 
of the plan, then the amount the United States may collect from the 
third party payer is the reasonable charge for the care provided less 
the appropriate deductible or copayment amount.
    (c) Claim from United States exclusive. The only way for a third 
party payer to satisfy its obligation under 10 U.S.C. 1095 is to pay the 
facility of the uniformed service or other authorized representative of 
the United States. Payment by a third party payer to the beneficiary 
does not satisfy 10 U.S.C. 1095.
    (d) Assignment of benefits or other submission by beneficiary not 
necessary. The obligation of the third party payer to pay is not 
dependent upon the beneficiary executing an assignment of benefits to 
the United States. Nor is the obligation to pay dependent upon any other 
submission by the beneficiary to the third party payer, including any 
claim or appeal. In any case in which a facility of the Uniformed 
Services makes a claim, appeal, representation, or other filing under 
the authority of this part, any procedural requirement in any third 
party payer plan for the beneficiary of such plan to make the claim, 
appeal, representation, or other filing must be deemed to be satisfied. 
A copy of the completed and signed DoD insurance declaration form will 
be provided to payers upon request, in lieu of a claimant's statement or 
coordination of benefits form.
    (e) Preemption of conflicting State laws. Any provision of a law or 
regulation of a State or political subdivision thereof that purports to 
establish any requirement on a third party payer that would have the 
effect of excluding from coverage or limiting payment, for any health 
care services for which payment by the third party payer under 10 U.S.C. 
1095 or this part is required, is preempted by 10 U.S.C. 1095 and shall 
have no force or effect in connection with the third party payer's 
obligations under 10 U.S.C. 1095 or this part.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41101, Sept. 9, 1992; 65 
FR 7727, Feb. 16, 2000; 67 FR 57740, Sept. 12, 2002]



Sec. 220.3  Exclusions impermissible.

    (a) Statutory requirement. Under 10 U.S.C. 1095(b), no provision of 
any third party payer's plan having the effect of excluding from 
coverage or limiting payment for certain care if that care is provided 
in a facility of the uniformed services shall operate to prevent 
collection by the United States.
    (b) General rules. Based on the statutory requirement, the following 
are general rules for the administration of 10 U.S.C. 1095 and this 
part.

[[Page 418]]

    (1) Express exclusions or limitations in third party payer plans 
that are inconsistent with 10 U.S.C. 1095(b) are inoperative.
    (2) No objection, precondition or limitation may be asserted that 
defeats the statutory purpose of collecting from third party payers.
    (3) Third party payers may not treat claims arising from services 
provided in facilities of the uniformed services less favorably than 
they treat claims arising from services provided in other hospitals.
    (4) No objection, precondition or limitation may be asserted that is 
contrary to the basic nature of facilities of the uniformed services.
    (c) Specific examples of impermissible exclusion. The following are 
several specific examples of impermissible exclusions, limitations or 
preconditions. These examples are not all inclusive.
    (1) Care provided by a government entity. A provision in a third 
party payer's plan that purports to disallow or limit payment for 
services provided by a government entity or paid for by a government 
program (or similar exclusion) is not a permissible ground for refusing 
or reducing third party payment.
    (2) No obligation to pay. A provision in a third party payer's plan 
that purports to disallow or limit payment for services for which the 
patient has no obligation to pay (or similar exclusion) is not a 
permissible ground for refusing or reducing third party payment.
    (3) Exclusion of military beneficiaries. No provision of an employer 
sponsored program or plan that purports to make ineligible for coverage 
individuals who are uniformed services health care beneficiaries shall 
be permissible.
    (4) No participation agreement. The lack of a participation 
agreement or the absence of privity of contract between a third party 
payer and a facility of the uniformed services is not a permissible 
ground for refusing or reducing third party payment.
    (5) Medicare carve-out and Medicare secondary payer provisions. A 
provision in a third party payer plan, other than a Medicare 
supplemental plan under Sec. 220.10, that seeks to make Medicare the 
primary payer and the plan the secondary payer or that would operate to 
carve out of the plan's coverage an amount equivalent to the Medicare 
payment that would be made if the services were provided by a provider 
to whom payment would be made under Part A or Part B of Medicare is not 
a permissible ground for refusing or reducing payment as the primary 
payer to the facility of the Uniformed Services by the third party payer 
unless the provision:
    (i) Expressly disallows payment as the primary payer to all 
providers to whom payment would not be made under Medicare (including 
payment under Part A, Part B, a Medicare HMO, or a Medicare+Choice 
plan); and
    (ii) Is otherwise in accordance with applicable law.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41101, Sept. 9, 1992; 65 
FR 7728, Feb. 16, 2000]



Sec. 220.4  Reasonable terms and conditions of health plan permissible.

    (a) Statutory requirement. The statutory obligation of the third 
party to pay is not unqualified. Under 10 U.S.C. 1095(a)(1) (as noted in 
Sec. 220.2 of this part), the obligation to pay is to the extent the 
third party payer would be obliged to pay if the beneficiary incurred 
the costs personally.
    (b) General rules. (1) Based on the statutory requirement, after any 
impermissible exclusions have been made inoperative (see Sec. 220.3 of 
this part), reasonable terms and conditions of the third party payer's 
plan that apply generally and uniformly to services provided in 
facilities other than facilities of the uniformed services may also be 
applied to services provided in facilities of the uniformed services.
    (2) Except as provided by 10 U.S.C. 1095, this part, or other 
applicable law, third party payers are not required to treat claims 
arising from services provided in or through facilities of the Uniformed 
Services more favorably than they treat claims arising from services 
provided in other facilities or by other health care providers.
    (c) Specific examples of permissible terms and conditions. The 
following are several specific examples of permissible terms and 
conditions of third party payer plans. These examples are not all 
inclusive.

[[Page 419]]

    (1) Generally applicable coverage provisions. Generally applicable 
provisions regarding particular types of medical care or medical 
conditions covered by the third party payer's plan are permissible 
grounds to refuse or limit third party payment.
    (2) Generally applicable utilization review provisions. (i) 
Reasonable and generally applicable provisions of a third party payer's 
plan requiring pre-admission screening, second surgical opinions, 
retrospective review or other similar utilization management activities 
may be permissible grounds to refuse or reduce third party payment if 
such refusal or reduction is required by the third party payer's plan.
    (ii) Such provisions are not permissible if they are applied in a 
manner that would result in claims arising from services provided by or 
through facilities of the Uniformed Services being treated less 
favorably than claims arising from services provided by other hospitals 
or providers.
    (iii) Such provisions are not permissible if they would not affect a 
third party payer's obligation under this part. For example, concurrent 
review of an inpatient hospitalization would generally not affect the 
third party payer's obligation because of the DRG-based, per-admission 
basis for calculating reasonable charges under Sec. 220.8(a) (except in 
long stay outlier cases, noted in Sec. 220.8(a)(4)).
    (3) Restrictions in HMO plans. Generally applicable exclusions in 
Health Maintenance Organization (HMO) plans of non-emergency or non-
urgent services provided outside the HMO (or similar exclusions) are 
permissible. However, HMOs may not exclude claims or refuse to certify 
emergent and urgent services provided within the HMO's service area or 
otherwise covered non-emergency services provided out of the HMO's 
service area. In addition, opt-out or point-of-service options available 
under an HMO plan may not exclude services otherwise payable under 10 
U.S.C. 1095 or this part.
    (d) Procedures for establishing reasonable terms and conditions. In 
order to establish that a term or condition of a third party payer's 
plan is permissible, the third party payer must provide appropriate 
documentation to the facility of the Uniformed Services. This includes, 
when applicable, copies of explanation of benefits (EOBs), remittance 
advice, or payment to provider forms. It also includes copies of 
policies, employee certificates, booklets, or handbooks, or other 
documentation detailing the plan's health care benefits, exclusions, 
limitations, deductibles, co-insurance, and other pertinent policy or 
plan coverage and benefit information.

[55 FR 21748, May 29, 1990, as amended at 65 FR 7728, Feb. 16, 2000; 67 
FR 57740, Sept. 12, 2002]



Sec. 220.5  Records available.

    Pursuant to 10 U.S.C. 1095(c), facilities of the uniformed services, 
when requested, shall make available to representatives of any third 
party payer from which the United States seeks payment under 10 U.S.C. 
1095 for inspection and review appropriate health care records (or 
copies of such records) of individuals for whose care payment is sought. 
Appropriate records which will be made available are records which 
document that the services which are the subject of the claims for 
payment under 10 U.S.C. 1095 were provided as claimed and were provided 
in a manner consistent with permissible terms and conditions of the 
third party payer's plan. This is the sole purpose for which patient 
care records will be made available. Records not needed for this purpose 
will not be made available.



Sec. 220.6  Certain payers excluded.

    (a) Medicare and Medicaid. Under 10 U.S.C. 1095(d), claims for 
payment from the Medicare or Medicaid programs (titles XVIII and XIX of 
the Social Security Act) are not authorized.
    (b) Supplemental plans. CHAMPUS (see 32 CFR part 199) supplemental 
plans and income supplemental plans are excluded from any obligation to 
pay under 10 U.S.C. 1095.
    (c) Third party payer plans prior to April 7, 1986. 10 U.S.C. 1095 
is not applicable to third party payer plans which have been in 
continuous effect without amendment or renewal since prior to April 7, 
1986. Plans entered into, amended or renewed on or after April 7, 1986, 
are subject to 10 U.S.C. 1095.

[[Page 420]]

    (d) Third party payer plans prior to November 5, 1990, in connection 
with outpatient care. The provisions of 10 U.S.C. 1095 and this section 
concerning outpatient services are not applicable to third party payer 
plans:
    (1) That have been in continuous effect without amendment or renewal 
since prior to November 5, 1990; and
    (2) For which the facility of the Uniformed Services or other 
authorized representative for the United States makes a determination, 
based on documentation provided by the third party payer, that the 
policy or plan clearly excludes payment for such services. Plans entered 
into, amended or renewed on or after November 5, 1990, are subject to 
this section, as are prior plans that do not clearly exclude payment for 
services covered by this section.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41101, Sept. 9, 1992]



Sec. 220.7  Remedies and procedures.

    (a) Pursuant to 10 U.S.C. 1095(e)(1), the United States may 
institute and prosecute legal proceedings against a third party payer to 
enforce a right of the United States under 10 U.S.C. 1095 and this part.
    (b) Pursuant to 10 U.S.C. 1095(e)(2), an authorized representative 
of the United States may compromise, settle or waive a claim of the 
United States under 10 U.S.C. 1095 and this part.
    (c) The authorities provided by 31 U.S.C. 3701, et seq., 28 CFR part 
11, and 4 CFR parts 101-104 regarding collection of indebtedness due the 
United States shall be available to effect collections pursuant to 10 
U.S.C. 1095 and this part.
    (d) A third party payer may not, without the consent of a U.S. 
Government official authorized to take action under 10 U.S.C. 1095 and 
this part, offset or reduce any payment due under 10 U.S.C. 1095 or this 
part on the grounds that the payer considers itself due a refund from a 
facility of the Uniformed Services. A request for refund must be 
submitted and adjudicated separately from any other claims submitted to 
the third party payer under 10 U.S.C. 1095 or this part.

[55 FR 21748, May 29, 1990, as amended at 65 FR 7728, Feb. 16, 2000]



Sec. 220.8  Reasonable charges.

    (a) In general. (1) Section 1095(f) and section 1097b(b) both 
address the issue of computation of rates. Between them, the effect is 
to authorize the calculation of all third party payer collections on the 
basis of reasonable charges and the computation of reasonable charges on 
the basis of per diem rates, all-inclusive per-visit rates, diagnosis 
related groups rates, rates used by the Civilian Health and Medical 
Program of the Uniformed Services (CHAMPUS) program to reimburse 
authorized providers, or any other method the Assistant Secretary of 
Defense (Health Affairs) considers appropriate and establishes in this 
part. Such rates, representative of costs, are also endorsed by section 
1079(a).
    (2) The general rule is that reasonable charges under this part are 
based on the rates used by CHAMPUS under 32 CFR 199.14 to reimburse 
authorized providers. There are some exceptions to this general rule, as 
outlined in this section.
    (b) Inpatient hospital and professional services on or after April 
1, 2003. Reasonable charges for inpatient hospital services provided on 
or after April 1, 2003, are based on the CHAMPUS Diagnosis Related Group 
(DRG) payment system rates under 32 CFR 199.14(a)(1). Certain 
adjustments are made to reflect differences between the CHAMPUS payment 
system and the Third Party Collection Program billing system. Among 
these are to include in the inpatient hospital service charges 
adjustments related to direct medical education and capital costs (which 
in the CHAMPUS system are handled as annual pass through payments). 
Additional adjustments are made for long stay outlier cases. Like the 
CHAMPUS system, inpatient professional services are not included in the 
inpatient hospital services charges, but are billed separately in 
accordance with paragraph (e) of this section. In lieu of the method 
described in this paragraph (b), the method in effect prior to April 1, 
2003 (described in paragraph (c) of this

[[Page 421]]

section), may continue to be used for a period of time after April 1, 
2003, if the Assistant Secretary of Defense (Health Affairs) determines 
that effective implementation requires a temporary deferral.
    (c) Inpatient hospital and inpatient professional services before 
April 1, 2003. (1) In general. Prior to April 1, 2003, the computation 
of reasonable charges for inpatient hospital and professional services 
is reasonable costs based on diagnosis related groups (DRGs). Costs 
shall be based on the inpatient full reimbursement rate per hospital 
discharge, weighted to reflect the intensity of the principal diagnosis 
involved. The average charge per case shall be published annually as an 
inpatient standardized amount. A relative weight for each DRG shall be 
the same as the DRG weights published annually for hospital 
reimbursement rates under CHAMPUS pursuant to 32 CFR 199.14(a)(1). The 
method in effect prior to April 1, 2003 (as described in this paragraph 
(c)), may continue to be used for a period of time after April 1, 2003, 
if the Assistant Secretary of Defense (Health Affairs) determines that 
effective implementation requires a temporary deferral of the method 
described in paragraph (b) of this section.
    (2) Standard amount. The standard amount is determined by dividing 
the total costs of all inpatient care in all military treatment 
facilities by the total number of discharges. This produces a single 
national standardized amount. The Department of Defense is authorized, 
but not required by this part, to calculate three standardized amounts, 
one for large urban, other urban/rural, and overseas area, utilizing the 
same distinctions in identifying the first two areas as is used for 
CHAMPUS under 32 CFR 199.14(a)(1). Using this applicable standardized 
amount, the Department of Defense may make adjustments for area wage 
rates and indirect medical education costs (as identified in paragraph 
(c)(4) of this section), producing for each inpatient facility of the 
Uniformed Services a facility-specific ``adjusted standardized amount'' 
(ASA).
    (3) DRG relative weights. Costs for each DRG will be determined by 
multiplying the standardized amount per discharge by the DRG relative 
weight. For this purpose, the DRG relative weights used for CHAMPUS 
pursuant to 32 CFR 199.14(a)(1) shall be used.
    (4) Adjustments for outliers, area wages, and indirect medical 
education. The Department of Defense may, but is not required by this 
part, to adjust charge determinations in particular cases for length-of-
stay outliers (long stay and short stay), cost outliers, area wage 
rates, and indirect medical education. If any such adjustments are used, 
the method shall be comparable to that used for CHAMPUS hospital 
reimbursements pursuant to 32 CFR 199.14(a)(1)(iii)(E), and the 
calculation of the standardized amount under paragraph (a)(2) of this 
section will reflect that such adjustments will be used.
    (5) Identification of professional and hospital charges. For 
purposes of billing third party payers other than automobile liability 
and no-fault insurance carriers, inpatient billings are subdivided into 
two categories:
    (i) Hospital charges (which refers to routine service charges 
associated with the hospital stay and ancillary charges).
    (ii) Professional charges (which refers to professional services 
provided by physicians and certain other providers).
    (d) Medical services and subsistence charges included. Medical 
services charges pursuant to 10 U.S.C. 1078 or subsistence charges 
pursuant to 10 U.S.C. 1075 are included in the claim filed with the 
third party payer pursuant to 10 U.S.C. 1095. For any patient of a 
facility of the Uniformed Services who indicates that he or she is a 
beneficiary of a third party payer plan, the usual medical services or 
subsistence charge will not be collected from the patient to the extent 
that payment received from the payer exceeds the medical services or 
subsistence charge. Thus, except in cases covered by Sec. 220.8(k), 
payment of the claim made pursuant to 10 U.S.C. 1095 which exceeds the 
medical services or subsistence charge, will satisfy all of the third 
party payer's obligation arising from the inpatient hospital care 
provided by the facility of the Uniformed Services on that occasion.

[[Page 422]]

    (e) Reasonable charges for professional services. The CHAMPUS 
Maximum Allowable Charge rate table, established under 32 CFR 199.14(h), 
is used for determining the appropriate charge for professional services 
in an itemized format, based on Healthcare Common Procedure Coding 
System (HCPCS) methodology. This applies to outpatient professional 
charges only prior to implementation of the method described in 
paragraph (b) of this section, and to all professional charges, both 
inpatient and outpatient, thereafter.
    (f) Miscellaneous Healthcare services. Some special services are 
provided by or through facilities of the Uniformed Services for which 
reasonable charges are computed based on reasonable costs. Those 
services are the following:
    (1) The charge for ambulance services is based on the full costs of 
operating the ambulance service.
    (2) With respect to inpatient hospital charges in the Burn Center at 
Brooke Army Medical Center, the Assistant Secretary of Defense for 
Health Affairs may establish an adjustment to the rate otherwise 
applicable under the DRG payment methodology under this section to 
reflect unique attributes of the Burn Center.
    (3) Charges for dental services (including oral diagnosis and 
prevention, periodontics, prosthodontics (fixed and removable), 
implantology, oral surgery, orthodontics, pediatric dentistry and 
endodontics) will be based on a full cost of the dental services.
    (4) With respect to service provided prior to January 1, 2003, 
reasonable charges for anesthesia services will be based on an average 
DoD cost of service in all Military Treatment Facilities. With respect 
to services provided on or after January 1, 2003, reasonable charges for 
anesthesia services will be based on an average cost per minute of 
service in all Military Treatment Facilities.
    (5) The charge for immunizations, allergin extracts, allergic 
condition tests, and the administration of certain medications when 
these services are provided in a separate immunizations or shot clinic, 
are based on CHAMPUS prevailing rates in cases in which such rates are 
available, and in cases in which such rates are not available, on the 
average full cost of these services, exclusive of any costs considered 
for purposes of any outpatient visit. A separate charge shall be made 
for each immunization, injection or medication administered.
    (6) The charges for pharmacy, durable medical equipment and supplies 
are based on CHAMPUS prevailing rates in cases in which such rates are 
available, in cases in which such rates are not available, on the 
average full cost of these items, exclusive of any costs considered for 
purposes of any outpatient visit. A separate charge shall be made for 
each item provided.
    (7) Charges for aero-medical evacuation will be based on the full 
cost of the aero-medical evacuation services.
    (g) Special rule for services ordered and paid for by a facility of 
the Uniformed Services but provided by another provider. In cases where 
a facility of the Uniformed Services purchases ancillary services or 
procedures, from a source other than a Uniformed Services facility, the 
cost of the purchased services will be added to the standard rate. 
Examples of ancillary services and other procedures covered by this 
special rule include (but are not limited to): laboratory, radiology, 
pharmacy, pulmonary function, cardiac catheterization, hemodialysis, 
hyperbaric medicine, electrocardiography, electroencephalography, 
electroneuromyography, pulmonary function, inhalation and respiratory 
therapy and physical therapy services.
    (h) Special rule for TRICARE Resource Sharing Agreements. Services 
provided in facilities of the Uniformed Services in whole or in part 
through personnel or other resources supplied under a TRICARE Resource 
Sharing Agreement under 32 CFR 199.17(h) are considered for purposes of 
this part as services provided by the facility of the Uniformed 
Services. Thus, third party payers will receive a claim for such 
services in the same manner and for the same charges as any similar 
services provided by a facility of the Uniformed Services.
    (i) Alternative determination of reasonable charges. Any third party 
payer that can satisfactorily demonstrate a prevailing rate of payment 
in the same geographic area for the same or similar

[[Page 423]]

aggregate groups of services that is less than the charges prescribed 
under this section may, with the agreement of the facility of the 
Uniformed Services (or other authorized representatives of the United 
States), limit payments under 10 U.S.C. 1095 to that prevailing rate for 
those services. The determination of the third party payer's prevailing 
rate shall be based on a review of valid contractual arrangements with 
other facilities or providers constituting a majority of the services 
for which payment is made under the third party payer's plan. This 
paragraph does not apply to cases covered by Sec. 220.11.
    (j) Exception authority for extraordinary circumstances. The 
Assistant Secretary of Defense (Health Affairs) may authorize exceptions 
to this section, not inconsistent with law, based on extraordinary 
circumstances.

[57 FR 41101, Sept. 9, 1992, as amended at 59 FR 49002, Sept. 26, 1994; 
61 FR 6542, Feb. 21, 1996; 62 FR 941, Jan. 7, 1997; 65 FR 7728, Feb. 16, 
2000; 67 FR 57740, Sept. 12, 2002]



Sec. 220.9  Rights and obligations of beneficiaries.

    (a) No additional cost share. Pursuant to 10 U.S.C. 1095(a)(2), 
uniformed services beneficiaries will not be required to pay to the 
facility of the uniformed services any amount greater than the normal 
medical services or subsistence charges (under 10 U.S.C. 1075 or 1078). 
In every case in which payment from a third party payer is received, it 
will be considered as satisfying the normal medical services or 
subsistence charges, and no further payment from the beneficiary will be 
required.
    (b) Availability of healthcare services unaffected. The availability 
of healthcare services in any facility of the Uniformed Services will 
not be affected by the participation or nonparticipation of a Uniformed 
Services beneficiary in a health care plan of a third party payer. 
Whether or not a Uniformed Services beneficiary is covered by a third 
party payer's plan will not be considered in determining the 
availability of healthcare services in a facility of the Uniformed 
Services.
    (c) Obligation to disclose information and cooperate with collection 
efforts. (1) Uniformed Services beneficiaries are required to provide 
correct information to the facility of the Uniformed Services regarding 
whether the beneficiary is covered by a third party payer's plan. Such 
beneficiaries are also required to provide correct information regarding 
whether particular health care services might be covered by a third 
party payer's plan, including services arising from an accident or 
workplace injury or illness. In the event a third party payer's plan 
might be applicable, a beneficiary has an obligation to provide such 
information as may be necessary to carry out 10 U.S.C. 1095 and this 
part, including identification of policy numbers, claim numbers, 
involved parties and their representatives, and other relevant 
information.
    (2) Uniformed Services beneficiaries are required to take other 
reasonable steps to cooperate with the efforts of the facility of the 
Uniformed Services to make collections under 10 U.S.C. 1095 and this 
part, such as submitting to the third party payer (or other entity 
involved in adjudicating a claim) any requests or documentation that 
might be required by the third party payer (or other entity), if 
consistent with this part, to facilitate payment under this part.
    (3) Intentionally providing false information or willfully failing 
to satisfy a beneficiary's obligations are grounds for disqualification 
for health care services from facilities of the Uniformed Services.
    (d) Mandatory disclosure of Social Security account numbers. 
Pursuant to 10 U.S.C. 1095(k)(2), every covered beneficiary eligible for 
care in facilities of the Uniformed Services is, as a condition of 
eligibility, required to disclose to authorized personnel his or her 
Social Security account number.

[55 FR 21748, May 29, 1990, as amended at 57 FR 41102, Sept. 9, 1992; 63 
FR 11600, Mar. 10, 1998; 65 FR 7729, Feb. 16, 2000]



Sec. 220.10  Special rules for Medicare supplemental plans.

    (a) Statutory obligation of Medicare supplemental plans to pay. The 
obligation of a Medicare supplemental plan to pay shall be determined as 
if the facility of the Uniformed Services were a medicare-eligible 
provider and the

[[Page 424]]

services provided as if they were Medicare-covered services. A Medicare 
supplemental plan is required to pay only to the extent that the plan 
would have incurred a payment obligation if the services had been 
furnished by a Medicare eligible provider.
    (b) Inpatient hospital care charges. (1) Notwithstanding the 
provisions of Sec. 220.8, charges to Medicare supplemental plans for 
inpatient hospital care services provided to beneficiaries of such plans 
shall not, for any admission, exceed the Medicare inpatient hospital 
deductible amount.
    (2) Only one deductible charge shall be made per hospital admission 
(or Medicare benefit period), regardless of whether the admission is to 
a facility of the Uniformed Services or a Medicare certified civilian 
hospital. To ensure that a Medicare supplemental insurer is not charged 
the inpatient hospital deductible twice when an individual who is 
entitled to benefits under both DoD retiree benefits and Medicare, the 
following payment rules apply:
    (i) If a dual beneficiary is first admitted to a Medicare-certified 
hospital and is later admitted to a facility of the Uniformed Services 
within the same benefit period initiated by the admission to the 
Medicare-certified hospital, the facility of the Uniformed Services 
shall not charge the Medicare supplemental insurance plan an inpatient 
hospital deductible.
    (ii) If a dual beneficiary is admitted first to a facility of the 
Uniformed Services and secondly to a Medicare-certified hospital within 
60 days of discharge from the facility of the Uniformed Services, the 
facility of the Uniformed Services shall refund to the Medicare 
supplemental insurer any inpatient hospital deductible that the insurer 
paid to the facility of the Uniformed Services so that it may pay the 
deductible to the Medicare-certified hospital.
    (c) Charges for Healthcare services other than inpatient deductible 
amount. (1) The Assistant Secretary of Defense (Health Affairs) may 
establish charge amounts for Medicare supplemental plans to collect 
reasonable charges for inpatient and outpatient copayments and other 
services covered by the Medicare supplemental plan. Any such schedule of 
charge amounts shall:
    (i) Be based on percentage amounts of the per diem, per visit and 
other rates established by Sec. 220.8 comparable to the percentage 
amounts of beneficiary financial responsibility under Medicare for the 
service involved;
    (ii) Include adjustments, as appropriate, to identify major 
components of the all inclusive per diem or per visit rates for which 
Medicare has special rules.
    (iii) Provide for offsets and/or refunds to ensure that Medicare 
supplemental insurers are not required to pay a limited benefit more 
than one time in cases in which beneficiaries receive similar services 
from both a facility of the uniformed services and a Medicare certified 
provider; and
    (iv) Otherwise conform with the requirements of this section and 
this part.
    (2) If collections are sought under paragraph (c) of this section, 
the effective date of such collections will be prospective from the date 
the Assistant Secretary of Defense (Health Affairs) provides notice of 
such collections, and will exempt policies in continuous effect without 
amendment or renewal since the date the Assistant Secretary of Defense 
(Health Affairs) provides notice of such collections.
    (d) Medicare claim not required. Notwithstanding any requirement of 
the Medicare supplemental plan policy, a Medicare supplemental plan may 
not refuse payment to a claim made pursuant to this section on the 
grounds that no claim had previously been submitted by the provider or 
beneficiary for payment under the Medicare program.
    (e) Exclusion of Medicare supplemental plans prior to November 5, 
1990. This section is not applicable to Medicare supplemental plans:
    (1) That have been in continuous effect without amendment since 
prior to November 5, 1990; and
    (2) For which the facility of the Uniformed Services (or other 
authorized representative of the United States) makes a determination, 
based on documentation provided by the Medicare supplemental plan, that 
the plan agreement clearly excludes payment for

[[Page 425]]

services covered by this section. Plans entered into, amended or renewed 
on or after November 5, 1990, are subject to this section, as are prior 
plans that do not clearly exclude payment for services covered by this 
section.

[57 FR 41102, Sept. 9, 1992, as amended at 59 FR 49003, Sept. 26, 1994; 
67 FR 57742, Sept. 12, 2002]



Sec. 220.11  Special rules for automobile liability insurance and 
no-fault automobile insurance.

    (a) Active duty members covered. In addition to Uniformed Services 
beneficiaries covered by other provisions of this part, this section 
also applies to active duty members of the Uniformed Services. As used 
in this section, ``beneficiaries'' includes active duty members.
    (b) Effect of concurrent applicability of the Federal Medical Care 
Recovery Act--(1) In general. In many cases covered by this section, the 
United States has a right to collect under both 10 U.S.C. 1095 and the 
Federal Medical Care Recovery Act (FMCRA), Pub. L. 87-693 (42 U.S.C. 
2651 et seq.). In such cases, the authority is concurrent and the United 
States may pursue collection under both statutory authorities.
    (2) Cases involving tort liability. In cases in which the right of 
the United States to collect from the automobile liability insurance 
carrier is premised on establishing some tort liability on some third 
person, matters regarding the determination of such tort liability shall 
be governed by the same substantive standards as would be applied under 
the FMCRA including reliance on state law for determinations regarding 
tort liability. In addition, the provisions of 28 CFR part 43 
(Department of Justice regulations pertaining to the FMCRA) shall apply 
to claims made under the concurrent authority of the FMCRA and 10 U.S.C. 
1095. All other matters and procedures concerning the right of the 
United States to collect shall, if a claim is made under the concurrent 
authority of the FMCRA and this section, be governed by 10 U.S.C. 1095 
and this part.
    (c) Exclusion of automobile liability insurance and no-fault 
automobile insurance plans prior to November 5, 1990. This section is 
not applicable to automobile liability insurance and no-fault automobile 
insurance plans:
    (1) That have been in continuous effect without amendment since 
prior to November 5, 1990; and
    (2) For which the facility of the Uniformed Services (or other 
authorized representative of the United States) makes a determination, 
based on documentation provided by the third party payer, that the 
policy or plan clearly excludes payment for services covered by this 
section. Plans entered into, amended or renewed on or after November 5, 
1990, are subject to this section, as are prior plans that do not 
clearly exclude payment for services covered by this section.

[57 FR 41103, Sept. 9, 1992]



Sec. 220.12  [Reserved]



Sec. 220.13  Special rules for workers' compensation programs.

    (a) Basic rule. Pursuant to the general duty of third party payers 
under 10 U.S.C. 1095(a)(1) and the definitions of 10 U.S.C. 1095(h), a 
workers' compensation program or plan generally has an obligation to pay 
the United States the reasonable charges for healthcare services 
provided in or through any facility of the Uniformed Services to a 
Uniformed Services beneficiary who is also a beneficiary under a 
workers' compensation program due to an employment related injury, 
illness, or disease. Except to the extent modified or supplemented by 
this section, all provisions of this part are applicable to any workers' 
compensation program or plan in the same manner as they are applicable 
to any other third party payer.
    (b) Special rules for lump-sum settlements. In cases in which a 
lump-sum workers' compensation settlement is made, the special rules 
established in this paragraph (b) shall apply for purposes of compliance 
with this section.
    (1) Lump-sum commutation of future benefits. If a lump-sum worker's 
compensation award stipulates that the amount paid is intended to 
compensate the individual for all future medical expenses required 
because of the work-related injury, illness, or disease, the Uniformed 
Service health care facility

[[Page 426]]

is entitled to reimbursement for injury, illness, or disease related, 
future health care services or items rendered or provided to the 
individual up to the amount of the lump-sum payment.
    (2) Lump-sum compromise settlement. (i) A lump sum compromise 
settlement, unless otherwise stipulated by an official authorized to 
take action under 10 U.S.C. 1095 and this part, is deemed to be a 
workers' compensation payment for the purpose of reimbursement to the 
facility of the Uniformed Services for services and items provided, even 
if the settlement agreement stipulates that there is no liability under 
the workers' compensation law, program, or plan.
    (ii) If a settlement appears to represent an attempt to shift to the 
facility of the Uniformed Services the responsibility of providing 
uncompensated services or items for the treatment of the work-related 
condition, the settlement will not be recognized and reimbursement to 
the uniformed health care facility will be required. For example, if the 
parties to a settlement attempt to maximize the amount of disability 
benefits paid under workers' compensation by releasing the employer or 
workers' compensation carrier from liability for medical expenses for a 
particular condition even though the facts show that the condition is 
work-related, the facility of the Uniformed Services must be reimbursed.
    (iii) Except as specified in paragraph (b)(2)(iv) of this section, 
if a lump-sum compromise settlement forecloses the possibility of future 
payment or workers' compensation benefits, medical expenses incurred by 
a facility of the Uniformed Services after the date of the settlement 
are not reimbursable under this section.
    (iv) As an exception to the rule of paragraph (b)(2)(iii) of this 
section, if the settlement agreement allocates certain amounts for 
specific future medical services, the facility of the Uniformed Services 
is entitled to reimbursement for those specific services and items 
provided resulting from the work-related injury, illness, or disease up 
to the amount of the lump-sum settlement allocated to future expenses.
    (3) Apportionment of a lump-sum compromise settlement of a workers' 
compensation claim. If a compromise settlement allocates a portion of 
the payment for medical expenses and also gives reasonable recognition 
to the income replacement element, that apportionment may be accepted as 
a basis for determining the payment obligation of a workers' 
compensation program or plan under this section to a facility of the 
Uniformed Services. If the settlement does not give reasonable 
recognition to both elements of a workers' compensation award or does 
not apportion the sum granted, the portion to be considered as payment 
for medical expenses is computed as follows: determine the ratio of the 
amount awarded (less the reasonable and necessary costs incurred in 
procuring the settlement) to the total amount that would have been 
payable under workers' compensation if the claim had not been 
compromised; multiply that ratio by the total medical expenses incurred 
as a result of the injury or disease up to the date of settlement. The 
product is the amount of workers' compensation settlement to be 
considered as payment or reimbursement for medical expenses.

[65 FR 7730, Feb. 16, 2000, as amended at 67 FR 57742, Sept. 12, 2002]



Sec. 220.14  Definitions.

    Ambulatory procedure visit. An ambulatory procedure visit is a type 
of outpatient visit in which immediate (day of procedure) pre-procedure 
and immediate post-procedure care require an unusual degree of intensity 
and are provided in an ambulatory procedure unit (APU) of the facility 
of the Uniformed Services. Care is required in the facility for less 
than 24 hours. An APU is specially designated and is accounted for 
separately from any outpatient clinic.
    Assistant Secretary of Defense (Health Affairs). This term includes 
any authorized designee of the Assistant Secretary of Defense (Health 
Affairs).
    Automobile liability insurance. Automobile liability insurance means 
insurance against legal liability for health and medical expenses 
resulting from personal injuries arising from operation of a motor 
vehicle. Automobile liability insurance includes:

[[Page 427]]

    (1) Circumstances in which liability benefits are paid to an injured 
party only when the insured party's tortious acts are the cause of the 
injuries; and
    (2) Uninsured and underinsured coverage, in which there is a third 
party tortfeasor who caused the injuries (i.e., benefits are not paid on 
a no-fault basis), but the insured party is not the tortfeasor.
    CHAMPUS supplemental plan. A CHAMPUS supplemental plan is an 
insurance, medical service or health plan exclusively for the purpose of 
supplementing an eligible person's benefit under CHAMPUS. (For 
information concerning CHAMPUS, see 32 CFR part 199.) The term has the 
same meaning as set forth in the CHAMPUS regulation (32 CFR 199.2).
    Covered beneficiaries. Covered beneficiaries are all healthcare 
beneficiaries under chapter 55 of title 10, United States Code, except 
members of the Uniformed Services on active duty (as specified in 10 
U.S.C. 1074(a)). However, for purposes of Sec. 220.11 of this part, 
such members of the Uniformed Services are included as covered 
beneficiaries.
    Facility of the Uniformed Services. A facility of the Uniformed 
Services means any medical or dental treatment facility of the Uniformed 
Services (as that term is defined in 10 U.S.C. 101(43)). Contract 
facilities such as Navy NAVCARE clinics and Army and Air Force PRIMUS 
clinics that are funded by a facility of the Uniformed Services are 
considered to operate as an extension of the local military treatment 
facility and are included within the scope of this program. Facilities 
of the Uniformed Services also include several former Public Health 
Services facilities that are deemed to be facilities of the Uniformed 
Services pursuant to section 911 of Pub. L. 97-99 (often referred to as 
``Uniformed Services Treatment Facilities'' or ``USTFs'').
    Healthcare services. Healthcare services include inpatient, 
outpatient, and designated high-cost ancillary services.
    Inpatient hospital care. Treatment provided to an individual other 
than a transient patient, who is admitted (i.e., placed under treatment 
or observation) to a bed in a facility of the uniformed services that 
has authorized beds for inpatient medical or dental care.
    Insurance, medical service or health plan. Any plan (including any 
plan, policy, program, contract, or liability arrangement) that provides 
compensation, coverage, or indemnification for expenses incurred by a 
beneficiary for health or medical services, items, products, and 
supplies. It includes but is not limited to:
    (1) Any plan offered by an insurer, re-insurer, employer, 
corporation, organization, trust, organized health care group or other 
entity.
    (2) Any plan for which the beneficiary pays a premium to an issuing 
agent as well as any plan to which the beneficiary is entitled as a 
result of employment or membership in or association with an 
organization or group.
    (3) Any Employee Retirement Income and Security Act (ERISA) plan.
    (4) Any Multiple Employer Trust (MET).
    (5) Any Multiple Employer Welfare Arrangement (MEWA).
    (6) Any Health Maintenance Organization (HMO) plan, including any 
such plan with a point-of-service provision or option.
    (7) Any individual practice association (IPA) plan.
    (8) Any exclusive provider organization (EPO) plan.
    (9) Any physician hospital organization (PHO) plan.
    (10) Any integrated delivery system (IDS) plan.
    (11) Any management service organization (MSO) plan.
    (12) Any group or individual medical services account.
    (13) Any preferred provider organization (PPO) plan or any PPO 
provision or option of any third party payer plan.
    (14) Any Medicare supplemental insurance plan.
    (15) Any automobile liability insurance plan.
    (16) Any no fault insurance plan, including any personal injury 
protection plan or medical payments benefit plan for personal injuries 
arising from the operation of a motor vehicle.
    Medicare eligible provider. Medicare participating (institutional) 
providers

[[Page 428]]

and physicians, suppliers and other individual providers eligible to 
participate in the Medicare program.
    Medicare supplemental insurance plan. A Medicare supplemental 
insurance plan is an insurance, medical service or health plan primarily 
for the purpose of supplementing an eligible person's benefit under 
Medicare. The term has the same meaning as ``Medicare supplemental 
policy'' in section 1882(g)(1) of the Social Security Act (42 U.S.C. 
1395ss) and 42 CFR part 403, subpart B.
    No-fault insurance. No-fault insurance means an insurance contract 
providing compensation for health and medical expenses relating to 
personal injury arising from the operation of a motor vehicle in which 
the compensation is not premised on who may have been responsible for 
causing such injury. No-fault insurance includes personal injury 
protection and medical payments benefits in cases involving personal 
injuries resulting from operation of a motor vehicle.
    Preferred provider organization. A preferred provider organization 
(PPO) is any arrangement in a third party payer plan under which 
coverage is limited to services provided by a select group of providers 
who are members of the PPO or incentives (for example, reduced 
copayments) are provided for beneficiaries under the plan to receive 
health care services from the members of the PPO rather than from other 
providers who, although authorized to be paid, are not included in the 
PPO. However, a PPO does not include any organization that is recognized 
as a health maintenance organization.
    Third party payer. A third party payer is any entity that provides 
an insurance, medical service, or health plan by contract or agreement. 
It includes but is not limited to:
    (1) State and local governments that provide such plans other than 
Medicaid.
    (2) Insurance underwriters or carriers.
    (3) Private employers or employer groups offering self-insured or 
partially self-insured medical service or health plans.
    (4) Automobile liability insurance underwriter or carrier.
    (5) No fault insurance underwriter or carrier.
    (6) Workers' compensation program or plan sponsor, underwriter, 
carrier, or self-insurer.
    (7) Any other plan or program that is designed to provide 
compensation or coverage for expenses incurred by a beneficiary for 
healthcare services or products.
    Third party payer plan. A third party payer plan is any plan or 
program provided by a third party payer, but not including an income or 
wage supplemental plan.
    Uniformed Services beneficiary. For purposes of this part, a 
Uniformed Services beneficiary is any person who is covered by 10 U.S.C. 
1074(b), 1076(a), or 1076(b). For purposes of Sec. 220.11 (but not for 
other sections), a Uniformed Services beneficiary also includes active 
duty members of the Uniformed Services.
    Workers' compensation program or plan. A workers' compensation 
program or plan is any program or plan that provides compensation for 
loss, to employees or their dependents, resulting from the injury, 
disablement, or death of an employee due to an employment related 
accident, casualty or disease. The common characteristic of such a plan 
or program is the provision of compensation regardless of fault, in 
accordance with a delineated schedule based upon loss or impairment of 
the worker's wage earning capacity, as well as indemnification or 
compensation for medical expenses relating to the employment related 
injury or disease. A workers' compensation program or plan includes any 
such program or plan:
    (1) Operated by or under the authority of any law of any State (or 
the District of Columbia, American Samoa, Guam, Puerto Rico, and the 
Virgin Islands).
    (2) Operated through an insurance arrangement or on a self-insured 
basis by an employer.
    (3) Operated under the authority of the Federal Employees 
Compensation Act or the Longshoremen's and Harbor Workers' Compensation 
Act.

[57 FR 41103, Sept. 9, 1992. Redesignated and amended at 65 FR 7729, 
7731, Feb. 16, 2000; 67 FR 57742, Sept. 12, 2002]

[[Page 429]]



PART 221_DEPARTMENT OF DEFENSE PARTICIPATION IN THE NATIONAL PRACTITIONER 
DATA BANK (NPDB)--Table of Contents




Sec.
221.1 Purpose.
221.2 Applicability and scope.
221.3 Definitions.
221.4 Policy.
221.5 Responsibilities.
221.6 Procedures.
221.7 Information requirements.

    Authority: Public Law 99-660, title IV (44 U.S.C. 11131-11152).

    Source: 55 FR 50321, Dec. 6, 1990, unless otherwise noted.



Sec. 221.1  Purpose.

    This part:
    (a) Establishes DoD policy, assigns responsibilities, and prescribes 
procedure for implementing Public Law 99-660, title IV and the 
objectives of the Memorandum of Understanding (MOU) between the 
Department of Health and Human Services (DHHS) and the Department of 
Defense, September 21, 1987, which outlines the DoD's participation in 
the National Practitioner Data Bank (NPDB).
    (b) Specifies the content of confidential reports to the NPDB 
established under part B of Public Law 99-660, and reporting 
responsibilities.



Sec. 221.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD) and the Military 
Departments (including their National Guard and Reserve components). The 
term, ``Military Departments,'' as used herein, refers to the Army, the 
Navy, and the Air Force.
    (b) Healthcare personnel who are in professions required to possess 
a license under DoD Directive 6025.6 \1\ and/or who are granted 
individual clinical privileges.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------



Sec. 221.3  Definitions.

    (a) Healthcare entity. A hospital, ambulatory health clinic, or 
dental clinic with an independent healthcare practitioner staff that 
carries out professional staff review and provides healthcare to medical 
or dental patients; and applicable professional staff components of each 
Service, as designated by the respective Surgeon General, which also 
perform peer review as part of the quality assurance program.
    (b) Licensed healthcare practitioner. Any healthcare practitioner of 
one of the professions required to possess a professional license, as 
prescribed in DoD Directive 6025.6.
    (c) The National Practitioner Data Bank (NPDB). The organization 
developed according to Public Law 99-660 to receive and provide data on 
professional competence and conduct of physicians, dentists, and other 
licensed healthcare providers. In Public Law 99-660, it is referred to 
as the ``National Data Bank.'' That name was changed after the MOU was 
signed.



Sec. 221.4  Policy.

    It is DoD policy that:
    (a) Professional review shall occur in every case of alleged 
malpractice.
    (b) When a malpractice claim results in a monetary payment for the 
benefit of a physician, dentist, or other healthcare practitioner 
required to be licensed by DoD Directive 6025.6, it shall be reported to 
the NPDB.
    (c) Practitioners shall have benefit of due process procedures for 
professional review activities under requirements of Public Law 99-660, 
Military Department regulations, and healthcare entity professional 
staff by-laws.
    (d) Information on adverse privileging actions and other 
professional review actions shall be reported to the appropriate State 
agencies and the NPDB.
    (1) The Department of Defense shall continue to provide State(s) of 
known licensure the information required by DoD Directive 6025.11.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 221.2(b).
---------------------------------------------------------------------------

    (2) Physicians and dentists shall be reported for both malpractice 
payment and privileging actions. All other personnel required to be 
licensed by DoD Directive 6025.6 shall also be reported for malpractice 
payments.
    (3) Other healthcare personnel shall be reported for privileging 
actions only

[[Page 430]]

after the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) 
notifies the Military Departments to begin submitting reports on a 
specified category of personnel.
    (e) The NPDB shall be queried during the accessioning process of a 
healthcare practitioner, and at least every 24 months, thereafter, as a 
part of the Military medical departments' recredentialing and 
reprivileging procedures. Inquiries on healthcare practitioners, on 
board at the time this part is implemented, should be performed at the 
time of their next recredentialing and reprivileging. If the granting of 
initial clinical privileges occurs more than 1 year after the query for 
accessioning, querying the data bank shall be required as a part of the 
initial privileging.



Sec. 221.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)) 
shall:
    (1) Monitor implementation of this part and issue such DoD 
Instructions as may be necessary.
    (2) Authorize exceptions to requirements of this part, if deemed 
necessary.
    (b) The General Counsel of the Department of Defense (GC, DoD) shall 
provide legal advice on the interpretation and implementation of this 
part and any subsequent DoD Instructions.
    (c) The Secretaries of the Military Departments shall implement the 
requirements of this part and the DoD Instructions issued under 
paragraph (a) of this section.



Sec. 221.6  Procedures.

    (a) The ASD(HA) shall issue Instructions, in accordance with Sec. 
221.5(a).
    (b) The Military Departments shall:
    (1) Develop policy and procedures that comply with requirements of 
this Directive and any subsequent DoD Instructions.
    (2) Ensure that their Office of the Surgeon General (OTSG) sends the 
appropriate information, in accordance with Sec. 221.7, to the NPDB and 
the Office of the Deputy Assistant Secretary of Defense (Professional 
Affairs and Quality Assurance) (ODASD(PA&QA)).
    (3) Ensure that the NPDB is queried appropriately, in accordance 
with Sec. 221.7.



Sec. 221.7  Information requirements.

    (a) The method of reporting information to, and querying information 
from, the NPDB shall be by use of the Health Resources and Services 
Administration (HRSA) forms or, when possible, electronically.
    (b) Reports to the ODASD(PA&QA) shall be submitted through 
electronic means, when available. Until then, DD Form 2499, ``Health 
Care Provider Clinical Privileges Action Report,'' and DD Form 2526, 
``Case Abstract For Malpractice Claims,'' shall be used, as appropriate.
    (c) The reporting requirements in this section have been assigned 
Report Control Symbols DD-HA(AR)1611 and DD-HA(AR)1782.



PART 223_DEPARTMENT OF DEFENSE UNCLASSIFIED CONTROLLED NUCLEAR 
INFORMATION (DoD UCNI)--Table of Contents




Sec.
223.1 Purpose.
223.2 Applicability and scope.
223.3 Definitions.
223.4 Policy.
223.5 Responsibilities.
223.6 Procedures.
223.7 Information requirements.

Appendix A to Part 223--Procedures for Identifying and Controlling DoD 
          UCNI
Appendix B to Part 223--Guidelines for the Determination of DoD UCNI

    Authority: 10 U.S.C. 128 and 5 U.S.C. 552(b)(3).

    Source: 56 FR 64554, Dec. 11, 1991, unless otherwise noted.



Sec. 223.1  Purpose.

    This part implements 10 U.S.C. 128 by establishing policy, assigning 
responsibilities, and prescribing procedures for identifying, 
controlling, and limiting the dissemination of unclassified information 
on the physical protection of DoD special nuclear material (SNM), 
equipment, and facilities. That information shall be referred to as 
``the Department of Defense Unclassified Controlled Nuclear Information 
(DoD

[[Page 431]]

UCNI),'' to distinguish it from a similar Department of Energy (DoE) 
program.



Sec. 223.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments, the Chairman of the Joint Chiefs of Staff and the 
Joint Staff, the Unified and Specified Commands, the Defense Agencies, 
and the DoD Field Activities (hereafter referred to collectively as 
``the DoD Components'').
    (b) Implements 10 U.S.C. 128, which is the statutory basis for 
controlling the DoD UCNI in the Department of Defense. 10 U.S.C. 128 
also constitutes the authority for invoking 32 CFR part 286 to prohibit 
mandatory disclosure of DoD UCNI under the ``Freedom of Information Act 
(FOIA)'' in 5 U.S.C. 552.
    (c) Supplements the security classification guidance contained in 
CG-W-5 \1\ and CG-SS-1 \2\ and DoD Instruction 5210.67 \3\ by 
establishing procedures for identifying, controlling, and limiting the 
dissemination of unclassified information on the physical protection of 
DoD SNM.
---------------------------------------------------------------------------

    \1\ Controlled document. Not releasable to the public.
    \2\ Requests may be forwarded to U.S. Department of Energy 
(Forrestal Building), 100 Independence Avenue, SW., Attention: 
Distribution Office of DOE Publications, Washington, DC 20585.
    \3\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (d) Applies to all SNM, regardless of form, in reactor cores or to 
other items under the direct control of the DoD Components.
    (e) Applies equally to DoE UCNI under DoD control, except the 
statute applicable to DoE UCNI (42 U.S.C. 2011 et seq.) must be used 
with the concurrence of the DoE as the basis for invoking FOIA (section 
552 of 10 U.S.C.).



Sec. 223.3  Definitions.

    (a) Atomic Energy Defense Programs. Activities, equipment, and 
facilities of the Department of Defense used or engaged in support of 
the following:
    (1) Development, production, testing, sampling, maintenance, repair, 
modification, assembly, utilization, transportation, or retirement of 
nuclear weapons or nuclear weapon components.
    (2) Production, utilization, or transportation of DoD SNM for 
military applications.
    (3) Safeguarding of activities, equipment, or facilities that 
support the functions in paragraphs (a) (1) and (2) of this section, 
including the protection of nuclear weapons, nuclear weapon components, 
or DoD SNM for military applications at a fixed facility or in transit.
    (b) Authorized Individual. A person who has been granted routine 
access to specific DoD UCNI under 10 U.S.C. 128.
    (c) Denying Official. An individual who denies a request made under 
5 U.S.C. 552 for all, or any portion, of a document or material 
containing DoD UCNI.
    (d) Document or Material. The physical medium on, or in, which 
information is recorded, or a product or substance which contains or 
reveals information, regardless of its physical form or characteristics.
    (e) Information. Any fact or concept regardless of the physical form 
or characteristics of the medium on, or in, which it is recorded, 
contained or revealed.
    (f) Reviewing Official. An individual who may make a determination 
that a document or material contains, does not contain, or no longer 
contains DoD UCNI.
    (g) Safeguards. An integrated system of physical protection, 
material accounting, and material control measures designed to deter, 
prevent, detect, and respond to unauthorized possession, use, or 
sabotage of DoD SNM, equipment or facilities.
    (h) Special Nuclear Material Facility. A DoD facility that performs 
a sensitive function (see paragraph (i) of this section).
    (i) Sensitive Function. A function in support of atomic energy 
defense programs whose disruption could reasonably be expected to have a 
significant adverse effect on the health and safety of the public or the 
common defense and security (see paragraph (a) of this section).

[[Page 432]]

    (j) Special Nuclear Material (SNM). Plutonium, uranium enriched in 
the isotope-233 or in the isotope-235, except source material or any 
material artificially enriched by any of the foregoing.
    (k) Special Nuclear Material Equipment. Equipment, systems, or 
components whose failure or destruction would cause an impact on 
safeguarding DoD SNM resulting in an unacceptable interruption to a 
national security program or an unacceptable impact on the health and 
safety of the public.
    (l) Unauthorized Dissemination. The intentional or negligent 
transfer, in any manner and by any person, of information contained in a 
document or material determined by a reviewing official to contain DoD 
UCNI, and so marked in accordance with the procedures in appendix A to 
this part, to any person or entity other than an authorized individual 
or a person granted special access to specific DoD UCNI under 10 U.S.C. 
128.



Sec. 223.4  Policy.

    It is DoD policy:
    (a) To prohibit the unauthorized dissemination of unclassified 
information on security measures, including security plans, procedures, 
and equipment for the physical protection of DoD SNM, equipment, or 
facilities.
    (b) That the decision to protect unclassified information as DoD 
UCNI shall be based on a determination that the unauthorized 
dissemination of such information could reasonably be expected to have a 
significant adverse effect on the health and safety of the public or the 
common defense and security by increasing significantly the likelihood 
of the illegal production of nuclear weapons or the theft, diversion, or 
sabotage of DoD SNM, equipment, or facilities.
    (c) That government information shall be made publicly available to 
the fullest extent possible by applying the minimum restrictions 
consistent with the requirements of 10 U.S.C. 128 necessary to protect 
the health and safety of the public or the common defense and security.
    (d) That nothing in this part prevents a determination that 
information previously determined to be DoD UCNI is classified 
information under applicable standards of classification.



Sec. 223.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Command, Control, 
Communications, and Intelligence shall:
    (1) Administer the DoD program for controlling DoD UCNI.
    (2) Coordinate DoD compliance with the DoE program for controlling 
DoE UCNI.
    (3) Prepare and maintain the reports required by 10 U.S.C. 128.
    (b) The Assistant Secretary of Defense (Public Affairs) shall 
provide guidance to the Assistant Secretary of Defense for Command, 
Control, Communications, and Intelligence (ASD(C3I)), other elements of 
the OSD, and the Heads of the DoD Components on the FOIA (5 U.S.C. 552), 
as implemented in DoD 5400.7-R,\4\ as it applies to the DoD UCNI 
Program.
---------------------------------------------------------------------------

    \4\ See footnote 3 to section 223.2(c).
---------------------------------------------------------------------------

    (c) The Heads of the DoD Components shall:
    (1) Implement this part in their DoD Components.
    (2) Advise the ASD(C3I) of the following, when information not in 
the guidelines in appendix B to this part is determined to be DoD UCNI:
    (i) Identification of the type of information to be controlled as 
DoD UCNI. It is not necessary to report each document or numbers of 
documents.
    (ii) Justification for identifying the type of information as DoD 
UCNI, based on the guidelines in appendix B to this part and prudent 
application of the adverse effects test.



Sec. 223.6  Procedures.

    Appendix A to this part outlines the procedures for controlling DoD 
UCNI. Appendix B to this part provides general and topical guidelines 
for identifying information that may qualify for protection as DoD UCNI. 
The procedures and guidelines in appendices A and B to this part 
complement the DoD Component Programs to protect other DoD-sensitive 
unclassified information and may be used with them.

[[Page 433]]



Sec. 223.7  Information requirements.

    (a) Section 128 of 10 U.S.C. requires that the Secretary of Defense 
prepare on a quarterly basis a report to be made available on the 
request of any interested person. Appendix A to this part outlines the 
procedures for preparing the quarterly report.
    (b) The report is exempt from licensing in accordance with paragraph 
E.4.e of DoD 7750.5-M.\5\
---------------------------------------------------------------------------

    \5\ See footnote 3 to Sec. 223.2(c).
---------------------------------------------------------------------------

 Appendix A to Part 223--Procedures for Identifying and Controlling DoD 
                                  UCNI

                               A. General

    1. The Secretary of Defense's authority for prohibiting the 
unauthorized disclosure and dissemination of DoD UCNI may be exercised 
by the Heads of the DoD Components and by the officials to whom such 
authority is specifically delegated by the Heads of the DoD Components. 
These procedures for identifying and controlling DoD UCNI are provided 
as guidance for the Heads of the DoD Components to implement the 
Secretary of Defense's authority to prohibit the unauthorized 
dissemination of unclassified information on security measures, 
including security plans, procedures, and equipment, for the physical 
protection of DoD SNM, equipment, or facilities.
    2. The decision to protect unclassified information as DoD UCNI 
shall be based on a determination that the unauthorized dissemination of 
such information could reasonably be expected to have an adverse effect 
on the health and safety of the public or the common defense and 
security by increasing significantly the likelihood of the illegal 
production of nuclear weapons or the theft, diversion, or sabotage of 
DoD SNM, equipment, or facilities.
    3. Government information shall be made publicly available to the 
fullest extent possible by applying the minimum restrictions consistent 
with the requirements of 10 U.S.C. 128, necessary to protect the health 
and safety of the public or the common defense and security.
    4. DoD personnel, in making a determination to protect unclassified 
information as DoD UCNI, shall consider the probability of an illegal 
production, theft, diversion, or sabotage if the information proposed 
for protection were made available for pubic disclosure and 
dissemination. The determination to protect specific documents or 
information is not related to the ability of DoD UCNI to be obtained by 
other sources. For determining the control of DoD UCNI, the cognizant 
official should consider how the unauthorized disclosure or 
dissemination of such information could assist a potential adversary in 
the following:
    a. Selecting a target for an act of theft, diversion, or sabotage of 
DoD SNM, equipment, or facilities (e.g., relative importance of a 
facility or the location, form, and quantity of DoD SNM). Information 
that can be obtained by observation from public areas outside controlled 
locations should not be considered as DoD UCNI.
    b. Planning or committing an act of theft, diversion, or sabotage of 
DoD SNM, equipment, or facilities (e.g., design of security systems; 
building plans; methods and procedures for transfer, accountability, and 
handling of DoD SNM; or security plans, procedures, and capabilities).
    c. Measuring the success of an act of theft, diversion, or sabotage 
of DoD SNM, equipment, or facilities (e.g., actual or hypothetical 
consequences of the sabotage of specific vital equipment or facilities).
    d. Illegally producing a nuclear explosive device (e.g., 
unclassified nuclear weapon design information useful in designing a 
primitive nuclear device; location of unique DoD SNM needed to fabricate 
such a device; or location of a nuclear weapon).
    e. Dispersing DoD SNM in the environment (e.g., location, form, and 
quantity of DoD SNM).
    5. DoD UCNI shall be identified, controlled, marked, transmitted, 
and safeguarded in the DoD Components, the North Atlantic Treaty 
Organization (NATO), and among DoD contractors, consultants, and 
grantees authorized to conduct official business for the Department of 
Defense. Contracts requiring the preparation of unclassified information 
that could be DoD UCNI shall have the requirements for identifying and 
controlling the DoD UCNI.
    6. DoE GG-2 \1\ and DoE Orders 5635.4 \2\ and 5650.3 \3\ provide 
background on implementation of the UCNI Program in the DoE. The DoD 
Components maintaining custody of DoE UCNI should refer to those 
documents for its identification and control.
---------------------------------------------------------------------------

    \1\ See footnote 3 to Sec. 223.2(c).
    \2\ See footnote 3 to Sec. 223.2(c).
    \3\ See footnote 3 to Sec. 223.2(c).
---------------------------------------------------------------------------

                         B. Identifying DoD UCNI

    1. To be considered for protection as DoD UCNI, the information 
must:
    a. Be unclassified.
    b. Pertain to security measures, including plans, procedures, and 
equipment, for the physical protection of DoD SNM, equipment, or 
facilities.
    c. Meet the adverse effects test; i.e., that the unauthorized 
dissemination of such information could reasonably be expected to

[[Page 434]]

have an adverse effect on the health and safety of the public or the 
common defense and security by increasing significantly the likelihood 
of the illegal production of nuclear weapons or the theft, diversion, or 
sabotage of DoD SNM, equipment, or facilities.
    2. Information, in the categories in section C. of appendix B to 
this part, about DOD SNM should be considered for protection as DoD 
UCNI.
    3. Material originated before the effective date of those 
procedures, which is found in the normal course of business to have DoD 
UCNI, shall be protected as DoD UCNI. There is no requirement to conduct 
detailed file searches to retroactively identify and control DoD UCNI. 
As existing documents or materials are withdrawn from file, they should 
be reviewed to determine if they meet the criteria for protection as DoD 
UCNI and marked and controlled, accordingly.

                          C. Access to DOD UCNI

    1. A Reviewing Official is an Authorized Individual for documents or 
materials that the Reviewing Official determines to contain DoD UCNI. An 
Authorized Individual, for DoD UCNI, may determine that another person 
is an Authorized Individual who may be granted routine access to the DoD 
UCNI, and who may further disseminate the DoD UCNI under the procedures 
specified in paragraph E., below. This recipient of DoD UCNI from an 
Authorized Individual is also an Authorized Individual for the specific 
DoD UCNI to which routine access has been granted. An Authorized 
Individual designates another person to be an Authorized Individual by 
the act of giving that person a document or material that contains DoD 
UCNI. No explicit designation or security clearance is required. This 
second Authorized Individual may further disseminate the UCNI under the 
procedures specified in section E. of the appendix.
    2. A person granted routine access to DoD UCNI must have a need to 
know the specific DoD UCNI in the performance of official duties or of 
DoD-authorized activities. The recipient of the document or material 
shall be informed of the physical protection and access requirements for 
DoD UCNI. In addition to a need to know, the person must meet at least 
one of the following requirements:
    a. The person is a U.S. citizen who is one of the following:
    (1) A Federal Government employee or member of the U.S. Armed 
Forces.
    (2) An employee of a Federal Government contractor, subcontractor, 
or of a prospective Federal Government contractor or subcontractor who 
will use the DoD UCNI for the purpose of bidding on a Federal Government 
contract or subcontract.
    (3) A Federal Government consultant or DoD advisory committee 
member.
    (4) A member of Congress.
    (5) A staff member of a congressional committee or of an individual 
Member of Congress.
    (6) The Governor of a State or designated State government official 
or representative.
    (7) A local government official or an Indian tribal government 
official; or
    (8) A member of a State, local, or Indian tribal law enforcement or 
emergency response organization.
    b. The person is other than a U.S. citizen, and is one of the 
following:
    (1) A Federal Government employee or a member of the U.S. Armed 
Forces.
    (2) An employee of a Federal Government contractor or subcontractor; 
or
    (3) A Federal Government consultant or DoD advisory committee 
member.
    c. The person may be other than a U.S. citizen who is not otherwise 
eligible for routine access to DoD UCNI under paragraph C. 2.b of this 
appendix, but who requires routine access to specific DoD UCNI in 
conjunction with one of the following:
    (1) An international nuclear cooperative activity approved by the 
Federal Government.
    (2) U.S. diplomatic dealings with foreign government officials; or
    (3) Provisions of treaties, mutual defense acts, or Government 
contracts or subcontracts.
    3. A person not authorized routine access to DoD UCNI under 
paragraph C.2. of this appendix, may submit a request for special access 
to DoD UCNI to Heads of DoD Components, or their designated 
representative, as appropriate. A special access request must include 
the following information:
    a. The name, current residence or business address, birthplace, 
birth date, and country of citizenship of the person submitting the 
request.
    b. A description of the DoD UCNI for which special access is being 
requested.
    c. A description of the purpose for which the DoD UCNI is needed; 
and
    d. Certification by the requester of his or her understanding of, 
and willingness to abide by, the requirements for the protection of DoD 
UCNI contained in this part.
    4. Heads of DoD Components, or their designated representative, 
shall base his or her decision to grant special access to DoD UCNI on an 
evaluation of the following criteria:
    a. The sensitivity of the DoD UCNI for which special access is being 
requested (i.e., the worst-case, adverse effect on the health and safety 
of the public or the common defense and security which would result from 
unauthorized use of the DoD UCNI).
    b. The purpose for which the DoD UCNI is needed (e.g., the DoD UCNI 
will be used for commercial or other private purposes, or will be used 
for public benefit to fulfill statutory or regulatory responsibilities).

[[Page 435]]

    c. The likelihood of an unauthorized dissemination by the requester 
of the DoD UCNI; and
    d. The likelihood of the requester using the DoD UCNI for illegal 
purposes.
    5. Heads of DoD Components, or their designated representative, 
shall attempt to notify a person who requests special access to DoD UCNI 
within 30 days of receipt of the request as to whether or not special 
access to the requested DoD UCNI is granted. If a final determination on 
the request cannot be made within 30 days of receipt of the request, 
Heads of DoD Components, or their designated representative, shall 
notify the requester, within 30 days of the request, as to when the 
final determination on the request may be made.
    6. A person granted special access to specific UCNI is not an 
Authorized Individual and shall not further disseminate the DoD UCNI to 
which special access has been granted.
    7. An Authorized Individual granting routine access to specific DoD 
UCNI to another person shall notify each person granted access (other 
than when the person being granted such access is a Federal Government 
employee, a member of the U.S. Armed Forces, or an employee of a Federal 
Government contractor or subcontractor) of applicable regulations 
concerning the protection of DoD UCNI and of any special dissemination 
limitations that the Authorized Individual determines to apply for the 
specific DoD UCNI to which routine access is being granted.
    8. Heads of DoD Components, or their designated representative, 
shall notify each person granted special access to DoD UCNI of 
applicable regulations concerning the protection of DoD UCNI prior to 
dissemination of the DoD UCNI to the person.
    9. The requirement to notify persons granted routine access or 
special access to specific DoD UCNI may be met by attachment of an 
appropriate cover sheet to the front of each document or material 
containing DoD UCNI prior to its transmittal to the person granted 
access.

                               D. Markings

    1. An unclassified document with DoD UCNI shall be marked ``DoD 
Unclassified Controlled Nuclear Information'' at the bottom on the 
outside of the front cover, if any, and on the outside of the back 
cover, if any.
    2. In an unclassified document, an individual page that has DoD UCNI 
shall be marked to show which of its portions contain DoD UCNI 
information. In marking sections, parts, paragraphs, or similar 
portions, the parenthetical term ``(DoD UCNI)'' shall be used and placed 
at the beginning of those portions with DoD UCNI.
    3. In a classified document, an individual page that has both DoD 
UCNI and classified information shall be marked at the top and bottom of 
the page with the highest security classification of information 
appearing on that page. In marking sections, parts, paragraphs, or 
similar portions, the parenthetical term ``(DoD UCNI)'' shall be used 
and placed at the beginning of those portions with DoD UCNI. In a 
classified document, an individual page that has DoD UCNI, but no 
classified information, shall be marked ``DoD Unclassified Controlled 
Information'' at the bottom of the page. The DoD UCNI marking may be 
combined with other markings, if all relevant statutory and regulatory 
citations are included.
    4. Other material (e.g., photographs, films, tapes, or slides) shall 
be marked ``DoD Unclassified Controlled Nuclear Information'' to ensure 
that a recipient or viewer is aware of the status of the information.

                    E. Dissemination and Transmission

    1. DoD UCNI may be disseminated in the DoD Components, the NATO, and 
among the DoD contractors, consultants, and grantees on a need-to-know 
basis to conduct official business for the Department of Defense. 
Recipients shall be made aware of the status of such information, and 
transmission shall be by means to preclude unauthorized disclosure or 
dissemination. Contracts that shall require access to DoD UCNI shall 
require compliance with this part and the DoD Component regulations and 
have the requirements for the marking, handling, and safeguarding of DoD 
UCNI.
    2. DoD holders of DoD UCNI are authorized to convey such information 
to officials in other Departments or Agencies on a need-to-know basis to 
fulfill a Government function. Transmittal documents shall call 
attention to the presence of DoD UCNI attachments using an appropriate 
statement in the text, or marking at the bottom of the transmittal 
document, that ``The attached document contains DoD Unclassified 
Controlled Nuclear Information (DoD UCNI).'' Similarly, documents 
transmitted shall be marked, as prescribed in section D. of this 
appendix.
    3. DoD UCNI transmitted outside the Department of Defense requires 
application of an expanded marking to explain the significance of the 
DoD UCNI marking. That may be accomplished by typing or stamping the 
following statement on the document before transfer:

                          DEPARTMENT OF DEFENSE

               UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION

                    EXEMPT FROM MANDATORY DISCLOSURE

(5 U.S.C. 552(b)(3), as authorized by 10 U.S.C. 128)

[[Page 436]]

    4. When not commingled with classified information, DoD UCNI may be 
sent by first-class mail in a single, opaque envelope or wrapping.
    5. DoD UCNI may only be discussed or transmitted over an unprotected 
telephone or telecommunications circuit (to include facsimile 
transmissions) in an emergency.
    6. Each part of electronically transmitted messages with DoD UCNI 
shall be marked appropriately. Unclassified messages with DoD UCNI shall 
have the abbreviation ``DoD UCNI'' before the beginning of the text.
    7. DoD UCNI may be processed, stored, or produced on stand-alone 
personal computers, or shared-logic work processing systems, if 
protection from unauthorized disclosure or dissemination, in accordance 
with the procedures in section F. of this appendix, can be ensured.
    8. A document marked as having DoD UCNI may be reproduced minimally 
without permission of the originator and consistent with the need to 
carry out official business.

                        F. Safeguarding DoD UCNI

    1. During normal working hours, documents determined to have DoD 
UCNI shall be placed in an out-of-sight location, or otherwise 
controlled, if the work area is accessible to unescorted personnel.
    2. At the close of business, DoD UCNI material shall be stored so to 
preclude disclosure. Storage of such material with other unclassified 
documents in unlocked receptacles; i.e., file cabinets, desks, or 
bookcases, is adequate, when normal Government or Government-contractor 
internal building security is provided during nonduty hours. When such 
internal building security is not provided, locked rooms or buildings 
normally provide adequate after-hours protection. If such protection is 
not considered adequate, DoD UCNI material shall be stored in locked 
receptacles; i.e., file cabinets, desks, or bookcases.
    3. Nonrecord copies of DoD UCNI materials must be destroyed by 
tearing each copy into pieces to reasonably preclude reconstruction and 
placing the pieces in regular trash containers. If the sensitivity or 
volume of the information justifies it, DoD UCNI material may be 
destroyed in the same manner as classified material rather than by 
tearing. Record copies of DoD UCNI documents shall be disposed of, in 
accordance with the DoD Components' record management regulations. DoD 
UCNI on magnetic storage media shall be disposed of by overwriting to 
preclude its reconstruction.
    4. The unauthorized disclosure of DoD UCNI material does not 
consititute disclosure of DoD information that is classified for 
security purposes. Such disclosure of DoD UCNI justifies investigative 
and administrative actions to determine cause, assess impact, and fix 
responsibility. The DoD Component that originated the DoD UCNI 
information shall be informed of its unauthorized disclosure and the 
outcome of the investigative and administrative actions.

                  G. Retirement of Document of Material

    1. Any unclassified document or material which is not marked as 
containing DoD UCNI but which may contain DoD UCNI shall be marked upon 
retirement in accordance with the DoD Components' record management 
regulations.
    2. A document or material marked as containing DoD UCNI is not 
required to be reviewed by a Reviewing Official upon or subsequent to 
retirement. A Reviewing Official shall review any retired document or 
material upon a request for its release made under 5 U.S.C. 552.

               H. Requests for Public Release of DoD UCNI

    DoD 5400.7-R applies. Information that qualifies as DoD UCNI, under 
10 U.S.C. 128, is exempt from mandatory disclosure under 5 U.S.C. 552. 
Consequently, requests for the public release of DoD UCNI shall be 
denied under 5 U.S.C. 552(b)(3), citing 10 U.S.C. 128 as authority.

                               I. Reports

    The Assistant Secretary of Defense for Command, Control, 
Communications, and Intelligence shall prepare and maintain the 
quarterly reports required by 10 U.S.C. 128. The Heads of the DoD 
Components shall advise the ASD(C3I) when information not in the 
guidelines in appendix B to this part is determined to be DoD UCNI. 
Those reports shall have the following information:
    1. Identification of the information to be controlled as DoD UCNI. 
It is not necessary to report each document or numbers of documents.
    2. Justification for identifying the type of information to be 
controlled as DoD UCNI.
    3. Certification that only the minimal information necessary to 
protect the health and safety of the public or the common defense and 
security is being controlled as DoD UCNI.

  Appendix B to Part 223--Guidelines for the Determination of DoD UCNI

             A. Use of Determination of DoD UCNI Guidelines

    1. These guidelines for determining DoD UCNI are the bases for 
determining what unclassified information about the physcial protection 
of DoD SNM, equipment or facilities in a given technical or programmatic 
subject area is DoD UCNI.
    2. The decision to protect unclassified information as DoD UCNI 
shall be based on a

[[Page 437]]

determination that the unauthorized dissemination of such information 
could reasonably be expected to have an adverse effect on the health and 
safety of the public or the common defense and security by increasing 
significantly the likelihood of the illegal production of nuclear 
weapons or the theft, diversion, or sabotage of SNM, equipment, or 
facilities.

                               B. General

    1. The policy for protecting unclassified information about the 
physical protection of DoD SNM, equipment, or facilities is to protect 
the public's interest by controlling certain unclassified Government 
information so to prevent the adverse effects described in section D. of 
this appendix and in appendix A to this part, without restricting public 
availability of information that would not result in those adverse 
effects.
    2. In controlling DoD SNM information, only the minimum restrictions 
needed to protect the health and safety of the public or the common 
defense and security shall be applied to prohibit the disclosure and 
dissemination of DoD UCNI.
    3. Any material that has been, or is, widely and irretrievably 
disseminated into the public domain and whose dissemination was not, or 
is not, under Government control is exempt from control under these 
guidelines. However, the fact that information is in the public domain 
is not a sufficient basis for determining that similar or updated 
Government-owned and -controlled information in another document or 
material is not, or is no longer, DoD UCNI; case-by-case determinations 
are required.

                           C. Topical Guidance

    The following elements of information shall be considered by the DoD 
Components during the preparation of unclassified information about the 
physical protection of DoD SNM to determine if it qualifies for control 
as DoD UCNI:

                      1. Vulnerability Assessments

    a. General vulnerabilities that could be associated with specific 
DoD SNM, equipment, or facility locations.
    b. The fact that DoD SNM facility security-related projects or 
upgrades are planned or in progress.
    c. Identification and description of security system components 
intended to mitigate the consequences of an accident or act of sabotage 
at a DoD SNM facility.

                 2. Material Control and Accountability

    a. Total quantity or categories of DoD SNM at a facility.
    b. Control and accountability plans or procedures.
    c. Receipts that, cumulatively, would reveal quantities and 
categories of DoD SNM of potential interest to an adversary.
    d. Measured discards, decay losses, or losses due to fission and 
transmutation for a reporting period.
    e. Frequency and schedule of DoD SNM inventories.

                         3. Facility Description

    a. Maps, conceptual design, and construction drawings of a DoD SNM 
facility showing construction characteristics of building and associated 
electrical systems, barriers, and back-up power systems not observable 
from a public area.
    b. Maps, plans, photographs, or drawings of man-made or natural 
features in a DoD SNM facility not observable from a public area; i.e., 
tunnels, storm or waste sewers, water intake and discharge conduits, or 
other features having the potential for concealing surreptitious 
movement.

            4. Intrusion Detection and Security Alarm Systems

    a. Information on the layout or design of security and alarm systems 
at a specific DoD SNM facility, if the information is not observable 
from a public area.
    b. The fact that a particular system make or model has been 
installed at a specific DoD SNM facility, if the information is not 
observable from a public area.
    c. Performance characteristics of installed systems.

       5. Keys, Locks, Combinations, and Tamper-Indicating Devices

    a. Types and models of keys, locks, and combinations of locks used 
in DoD SNM facilities and during shipment.
    b. Method of application of tamper-indicating devices.
    c. Vulnerability information available from unclassified vendor 
specifications.

              6. Threat Response Capability and Procedures

    a. Information about arrangements with local, State, and Federal law 
enforcement Agencies of potential interest to an adversary.
    b. Information in ``nonhostile'' contingency plans of potential 
value to an adversary to defeat a security measure; i.e., fire, safety, 
nuclear accident, radiological release, or other administrative plans.
    c. Required response time of security forces.

                    7. Physical Security Evaluations

    a. Method of evaluating physical security measures not observable 
from public areas.
    b. Procedures for inspecting and testing communications and security 
systems.

[[Page 438]]

                         8. In-Transit Security

    a. Fact that a shipment is going to take place.
    b. Specific means of protecting shipments.
    c. Number and size of packages.
    d. Mobile operating and communications procedures that could be 
exploited by an adversary.
    e. Information on mode, routing, protection, communications, and 
operations that must be shared with law enforcement or other civil 
agencies, but not visible to the public.
    f. Description and specifications of transport vehicle compartments 
or security systems not visible to the public.

  9. Information on Nuclear Weapon Stockpile and Storage Requirement, 
Nuclear Weapon Destruction and Disablement Systems, and Nuclear Weapons 
                        Physical Characteristics

    Refer to CG-W-5 for guidance about the physical protection of 
information on nuclear weapon stockpile and storage requirements, 
nuclear weapon destruction and disablement systems, and nuclear weapon 
physical characteristics that may, under certain circumstances, be 
unclassified. Such information meets the adverse effects test shall be 
protected as DoD UCNI.



PART 224_DoD COMMITTEE MANAGEMENT PROGRAM--Table of Contents




Sec.
224.1 Purpose.
224.2 Applicability.
224.3 Definitions.
224.4 Policy.
224.5 Responsibilities.

    Authority: 10 U.S.C. 137.

    Source: 55 FR 5002, Feb. 13, 1990, unless otherwise noted.



Sec. 224.1  Purpose.

    This part:
    (a) Revises 32 CFR part 224 and updates the policy, procedures, and 
responsibilities for the Department of Defense (DoD) Committee 
Management Program.
    (b) Excludes Federal advisory committees from coverage under this 
part. They shall be established and administered in accordance with the 
provisions of DoD Directive 5105.4.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------



Sec. 224.2  Applicability.

    This Directive applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Joint Chiefs of Staff (JCS) and 
Joint Staff, the Unified and Specified Commands, the Defense Agencies, 
and the DoD Field Activities (hereafter referred to collectively as 
``DoD Components'').



Sec. 224.3  Definitions.

    (a) Heads of OSD Organizations. The Under Secretaries of Defense; 
Assistant Secretaries of Defense; Director of Defense Research and 
Engineering; DoD Comptroller; DoD General Counsel; DoD Inspector 
General; Director, Operational Test and Evaluation; Assistants to the 
Secretary of Defense; and, the Director, Administration and Management.
    (b) Committee. A body of persons with a collective responsibility 
appointed to consider, investigate, advise, take action, and report on 
specific problems or subject areas. The prime characteristics of 
committees are their corporate and collective responsibility, and their 
permanent or ongoing (versus ad hoc) nature. The term ``committee'' 
applies to any committee, board, commission, council, conference, panel, 
task force, or other similar group or any subcommittee or sub-group 
thereof that is composed of officials of the U.S. or a foreign 
government, and is established by the direction of the DoD Component 
Head.
    (1) Operational Committee. One whose primary functions and 
responsibilities are operational, rather than advisory.
    (2) Interagency Committee. Any committee composed wholly of 
representatives from two or more U.S. Government agencies.
    (3) International Committee. Any committee established by formal 
agreement between the United States and the government of another 
country or countries or by an international body in which the United 
States participates.
    (4) Intra-Component Committee. Any committee composed wholly of 
representatives from one DoD Component.
    (5) Joint DoD Committee. Any committee composed wholly of DoD 
representatives from two or more DoD Components.

[[Page 439]]



Sec. 224.4  Policy.

    It is DoD policy that:
    (a) Committees shall be established only when their functions cannot 
be accomplished within the existing organizational structure.
    (b) Committees shall be established to perform such tasks as fact-
finding, research, evaluation, studies, and reviews.
    (c) Committees may be established to perform operational, 
administrative, or management functions.
    (d) When establishing committees, consideration shall be given to 
ensuring necessity, economy and efficiency of operation, and execution 
within resource constraints.
    (e) Committees shall be disestablished when the purpose for which 
they were established has been served.
    (f) Nothing contained in this part shall be construed to limit or 
restrict the free exchange of information, advice, and ideas between 
representatives of DoD Components or other Federal Agencies through ad 
hoc occasional meetings or other means.



Sec. 224.5  Responsibilities.

    (a) The Director of Administration and Management, Office of the 
Secretary of Defense (DA&M, OSD), or his designee, shall:
    (1) Provide policy guidance on the DoD Committee Management Program 
to DoD Components.
    (2) Represent the Department of Defense and maintain liaison with 
the Congress, General Accounting Office (GAO), Office of Management and 
Budget (OMB), and other Government agencies, as required, on matters 
involving the DoD Committee Management Program.
    (3) Obtain such information, analyses, reports, and assistance from 
DoD Components as is required to respond to inquiries from the Congress, 
GAO, OMB, and other Government agencies, consistent with the provisions 
of DoD Directive 7750.5.\2\
---------------------------------------------------------------------------

    \2\ See Sec. 224.1(b).
---------------------------------------------------------------------------

    (4) Serve as DoD Committee Management Officer with responsibility to 
monitor compliance with the provisions of this part.
    (b) The Heads of DoD Components, or their designees, shall:
    (1) Ensure that the committees under their cognizance are 
established and administered consistent with the provisions of this 
part.
    (2) Develop operating procedures and provide supplemental guidance 
as required for the efficient operation of the committees under their 
cognizance.
    (3) Administer their committee management programs, including: the 
approval or disapproval of proposals for the establishment, revision, 
continuation, or termination of operational, interagency, international, 
intra-Component, and joint DoD committees under their cognizance; the 
development of pertinent operating documents such as charters, 
membership lists, terms of reference, memoranda of understanding, and 
international agreements; and, the maintenance and disposition of 
reports, records, and minutes of meetings.
    (4) Approve or disapprove proposals for participation by their 
Components on committees chaired by another DoD Component, Government 
agency, or foreign government.
    (5) Maintain information about the program, objectives, and 
activities of each committee established within their Component and 
provide such information, when requested, to the DA&M.
    (6) Conduct periodic reviews of existing committees, and evaluate 
recommendations for their revision, consolidation, or termination.
    (7) Designate a Committee Management Officer to assist in the 
performance of the above responsibilities.



PART 226_SHELTER FOR THE HOMELESS--Table of Contents




Sec.
226.1 Purpose.
226.2 Applicability.
226.3 Policy.
226.4 Responsibilities.
226.5 Effective date and implementation.

    Authority: 10 U.S.C. 2546.

    Source: 52 FR 42638, Nov. 6, 1987, unless otherwise noted.

[[Page 440]]



Sec. 226.1  Purpose.

    This part implements 10 U.S.C. 2546 by establishing Department of 
Defense policy for the Department of Defense Shelter for the Homeless 
Program.



Sec. 226.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments (including their National Guard and Reserve 
components), the Unified and Specified Commands, the Defense Agencies, 
and Department of Defense Field Activities (hereafter referred to 
collectively as ``Department of Defense Components'').



Sec. 226.3  Policy.

    (a) By Memorandum for the Secretaries of the Military Departments 
from the Secretary of Defense dated October 29, 1984, and entitled: 
``Shelter for the Homeless'', the Secretary of Defense stated it is 
Department of Defense policy that shelters for the homeless may be 
established on military installations.
    (b) The Secretary of a Military Department, or designee, may make 
military installations under his or her jurisdiction available for the 
furnishing of shelter to persons without adequate shelter in accordance 
with 10 U.S.C. 2546 and this part if he or she, or designee, determines 
that such shelter will not interfere with military preparedness or 
ongoing military functions.
    (c) The Secretary of a Military Department, after determining that a 
shelter for the homeless may be established on a military installation, 
shall ensure that the plans for the shelter be developed in cooperation 
with appropriate State or local governmental entities and charitable 
organizations. The State or local government entity, either separately 
or in conjunction with the charitable organization, shall be responsible 
for operating and staffing any shelter established under the Shelter for 
the Homeless Program.
    (d) Services that may be provided by a Military Department incident 
to the furnishing of shelter under 10 U.S.C. 2546 are the following:
    (1) Utilities.
    (2) Bedding.
    (3) Security.
    (4) Transportation.
    (5) Renovation of facilities.
    (6) Minor repairs undertaken specifically to make suitable space 
available for shelter to be provided in accordance with 10 U.S.C. 2546 
and this part.
    (7) Property liability insurance.
    (e) The Military Departments should be especially sensitive to 
establishing shelters in the following areas:
    (1) Family housing areas,
    (2) Troop billeting areas,
    (3) Service facilities such as commissaries, exchanges, dining 
facilities, hospitals, clinics, recreation centers, etc.,
    (4) Safety arcs formed by firing ranges and impact areas,
    (5) Frequently used training areas.
    (f) Shelters for the homeless shall normally be established in only 
those facilities where the homeless will have exclusive use at all 
times. Shelters for the homeless shall normally not be established in 
facilities ``shared'' with military functions.
    (g) In addition to providing shelter and incidental services, 
Department of Defense Components may provide bedding for support of 
shelters for the homeless that are located on other than Department of 
Defense real property. Bedding may be provided without reimbursement, 
but may only be provided to the extent that the provision of such 
bedding will not interfere with military requirements.
    (h) Individuals or entities interested in establishing shelters on 
military installations shall:
    (1) Submit a request to the Installation Commander where the shelter 
is desired, and
    (2) Provide, at a minimum, the following data: The name and address 
of the organization that will operate the shelter, the name and address 
of the affiliated state or local governmental entity, numbers of people 
to be served, type of program, hours of operation, special needs of the 
people to be served, incidental services required, estimated date when 
the services are requested, estimate of when services will no longer be 
necessary, and what security provisions are to be provided (physical 
security).

[[Page 441]]



Sec. 226.4  Responsibilities.

    (a) The Deputy Assistant Secretary of Defense (Installations) shall:
    (1) Administer the Homeless Assistance Program and issue such 
supplemental guidance as is necessary.
    (2) Appoint an individual as Director, The Homeless Assistance 
Program, who shall be the Department of Defense program manager 
responsible for monitoring the Shelter for the Homeless program and 
answering all inquiries.
    (b) The Assistance Secretary of Defense (Comptroller) shall provide 
guidance on the use of Department of Defense funds to finance the items 
issued in support of the Shelter for the Homeless program.
    (c) The Secretaries of the Military Departments shall:
    (1) Implement the Shelter for the Homeless program.
    (2) Appoint a senior manager to monitor the Shelter for the Homeless 
program within that Department and to provide any assistance that may be 
required to the Deputy Assistant Secretary of Defense (Installations). 
Such official, after consultation with the Director, The Homeless 
Assistance Program ODASD(I), shall approve or disapprove all requests to 
establish a Shelter for the Homeless in accordance with 10 U.S.C. 2546 
and this part.
    (3) Ensure that upon receipt of a formal request for assistance, as 
defined in Sec. 226.3(h) of this part, the Military Department 
concerned provides an appropriate response to the requester within 30 
days.
    (4) Ensure that each Installation Commander is informed about the 
Shelter for the Homeless Program and the types of assistance that they 
may provide as authorized by 10 U.S.C. 2546 and this part.
    (d) Department of Defense Installation Commanders shall:
    (1) Acknowledge all requests for assistance.
    (2) Upon receipt of a request, initiate such action as is necessary 
to determine the availability of facilities at that installation for use 
as a shelter for the homeless.
    (3) Forward each request, through the chain of command, to the 
Service Senior Manager with a copy to the DASD(I). The Installation 
Commander's recommendation shall accompany each request.



Sec. 226.5  Effective date and implementation.

    This part is effective October 30, 1987. Forward one copy of 
implementing documents to the Deputy Assistant Secretary of Defense 
(Installations) within 60 days.



PART 228_SECURITY PROTECTIVE FORCE--Table of Contents




Sec.
228.1 Applicability.
228.2 Control of activities on protected property.
228.3 Restrictions on admission to protected property.
228.4 Control of vehicles on protected property.
228.5 Enforcement of parking regulations.
228.6 Security inspection.
228.7 Prohibition on weapons and explosives.
228.8 Prohibition on photographic or electronic recording or 
          transmitting equipment.
228.9 Prohibition on narcotics and illegal substances.
228.10 Prohibition on alcohol.
228.11 Restrictions on the taking of photographs.
228.12 Physical protection of facilities.
228.13 Disturbances on protected property.
228.14 Prohibition on gambling.
228.15 Restriction regarding animals.
228.16 Soliciting, vending, and debt collection.
228.17 Distribution of unauthorized materials.
228.18 Penalties and the effect on other laws.

    Authority: 40 U.S.C. 318-318c.

    Source: 59 FR 5948, Feb. 9, 1994, unless otherwise noted.



Sec. 228.1  Applicability.

    This part applies to all property under the charge and control of 
the Director, NSA, and to all persons entering in or on such property 
(hereinafter referred to as ``protected property''). Employees of the 
NSA and any other persons entering upon protected property shall be 
subject to these regulations.

[[Page 442]]



Sec. 228.2  Control of activities on protected property.

    Persons in and on protected property shall at all times comply with 
official signs of a prohibitory, regulatory, or directory nature and 
with the direction of Security Protective Officers and any other duly 
authorized personnel.



Sec. 228.3  Restrictions on admission to protected property.

    Access to protected property shall be restricted to ensure the 
orderly and secure conduct of Agency business. Admission to protected 
property will be restricted to employees and other persons with proper 
authorization who shall, when requested, display government or other 
identifying credentials to the Security Protective Officers or other 
duly authorized personnel when entering, leaving, or while on the 
property.



Sec. 228.4  Control of vehicles on protected property.

    Drivers of all vehicles entering or while on protected property 
shall comply with the signals and directions of Security Protective 
Officers or other duly authorized personnel and any posted traffic 
instructions. All vehicles shall be driven in a safe and careful manner 
at all times, in compliance with applicable motor vehicle laws.



Sec. 228.5  Enforcement of parking regulations.

    For reasons of security, parking regulations shall be strictly 
enforced. Except with proper authorization, parking on protected 
property is not allowed without a permit. Parking without a permit or 
other authorization, parking in unauthorized locations or in locations 
reserved for other persons, or parking contrary to the direction of 
posted signs or applicable state or federal laws and regulations is 
prohibited. Vehicles parked in violation, where warning signs are 
posted, shall be subject to removal at the owner's risk, which shall be 
in addition to any penalties assessed pursuant to Sec. 228.18. The 
Agency assumes no responsibility for the payment of any fees or costs 
related to such removal which may be charged to the owner of the vehicle 
by the towing organization. This paragraph may be supplemented from time 
to time with the approval of the NSA Director of Security or his 
designee by the issuance and posting of such specific traffic directives 
as may be required, and when so issued and posted such directives shall 
have the same force and effect as if made a part hereof. Proof that a 
vehicle was parked in violation of these regulations or directives may 
be taken as prima facie evidence that the registered owner was 
responsible for the violation.



Sec. 228.6  Security inspection.

    Any personal property, including but not limited to any packages, 
briefcases, containers or vehicles brought into, while on, or being 
removed from protected property are subject to inspection. A search of a 
person may accompany an investigative stop or an arrest.



Sec. 228.7  Prohibition on weapons and explosives.

    No persons entering or while on protected property shall carry or 
possess, either openly or concealed, firearms, any illegal or legally 
controlled weapon (e.g., throwing stars, switchblades), explosives, or 
items intended to be used to fabricate an explosive or incendiary 
device, except as authorized by the NSA Director of Security or his 
designee at each Agency facility. The use of chemical agents (Mace, tear 
gas, etc.) on protected property in circumstances that do not include an 
immediate and unlawful threat of physical harm to any person or persons 
is prohibited; however, this prohibition does not apply to use by law 
enforcement personnel in the performance of their duties.



Sec. 228.8  Prohibition on photographic or electronic recording or 
transmitting equipment.

    No person entering or while on protected property shall bring or 
possess any kind of photographic, recording or transmitting equipment 
(including but not limited to cameras, cellular telephones, or 
recorders), except as specially authorized by the NSA Director of 
Security or his designee at each Agency facility.

[[Page 443]]



Sec. 228.9  Prohibition on narcotics and illegal substances.

    Entering or being on protected property under the influence of, or 
while using or possessing, any narcotic drug, hallucinogen, marijuana, 
barbiturate or amphetamine is prohibited. Operation of a motor vehicle 
entering or while on protected property by a person under the influence 
of narcotic drugs, hallucinogens, marijuana, barbiturates or 
amphetamines is also prohibited. These prohibitions shall not apply in 
cases where the drug is being used as prescribed for a patient by a 
licensed physician.



Sec. 228.10  Prohibition on alcohol.

    Entering or being on protected property under the influence of 
alcoholic beverages is prohibited. Operation of a motor vehicle entering 
or while on protected property by a person under the influence of 
alcoholic beverages is prohibited. The use of alcoholic beverages on 
protected property is also prohibited, except on occasions and on 
protected property for which the NSA Deputy Director for Support 
Services or his designee has granted approval for such use.



Sec. 228.11  Restrictions on the taking of photographs.

    In order to protect the security of the Agency's facilities, 
photographs may be taken on protected property only with the consent of 
the NSA Director of Security or his designee. The taking of photographs 
includes the use of television cameras, video taping equipment, and 
still or motion picture cameras.



Sec. 228.12  Physical protection of facilities.

    The willful destruction of, or damage to any protected property, or 
any buildings or personal property thereon, is prohibited. The theft of 
any personal property, the creation of any hazard on protected property 
to persons or things, and the throwing of articles of any kind at 
buildings or persons on protected property is prohibited. The improper 
disposal of trash or rubbish, or any unauthorized or hazardous materials 
on protected property is also prohibited.



Sec. 228.13  Disturbances on protected property.

    Any conduct which impedes or threatens the security of protected 
property, or any buildings or persons thereon, or which disrupts the 
performance of official duties by Agency employees, or which interferes 
with ingress to or egress from protected property is prohibited. Also 
prohibited is any disorderly conduct, any failure to obey an order to 
depart the premises, any unwarranted loitering, any behavior which 
creates loud or unusual noise or nuisance, or any conduct which 
obstructs the usual use of entrances, foyers, lobbies, corridors, 
offices, elevators, stairways or parking lots.



Sec. 228.14  Prohibition on gambling.

    Participating in games for money or other personal property, or the 
operating of gambling devices, the conduct of a lottery, or the selling 
or purchasing of numbers tickets, in or on protected property is 
prohibited. This prohibition shall not apply to the vending or exchange 
of chances by licensed blind operators of vending facilities for any 
lottery set forth in a State law and conducted by an agency of a State 
as authorized by section 2(a)(5) of the Randolph-Sheppard Act, as 
amended (20 U.S.C. 107(a)(5)).



Sec. 228.15  Restriction regarding animals.

    No animals except guide dogs for the blind or hearing impaired, or 
guard or search dogs used by authorized state or federal officials, 
shall be brought upon protected property, except as authorized by the 
NSA Director of Security or his designee at each Agency facility.



Sec. 228.16  Soliciting, vending, and debt collection.

    Commercial or political soliciting, vending of all kinds, displaying 
or distributing commercial advertising, collecting private debts or 
soliciting alms on protected property is prohibited. This does not apply 
to:
    (a) National or local drives for welfare, health, or other purposes 
as authorized by the ``Manual on Fund Raising Within the Federal 
Service,'' issued by the U.S. Office of Personnel Management under 
Executive Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 139,

[[Page 444]]

or by other federal laws or regulations; and
    (b) Authorized employee notices posted on Agency bulletin boards.



Sec. 228.17  Distribution of unauthorized materials.

    Distributing, posting or affixing materials, such as pamphlets, 
handbills, or flyers, on protected property is prohibited, except as 
provided by Sec. 228.16, as authorized by the NSA Director of Security 
or his designee at each Agency facility, or when conducted as part of 
authorized Government activities.



Sec. 228.18  Penalties and the effect on other laws.

    Whoever shall be found guilty of violating any provision of these 
regulations is subject to a fine of not more than $50 or imprisonment of 
not more than 30 days, or both. In the case of traffic and parking 
violations, fines assessed shall be in accordance with the schedule(s) 
of fines adopted by the United States District Court for the District 
where the offense occurred. Nothing in these regulations shall be 
construed to abrogate or supersede any other Federal laws or any State 
or local laws or regulations applicable to any area in which the 
protected property is situated.



PART 229_PROTECTION OF ARCHAEOLOGICAL RESOURCES: UNIFORM REGULATIONS
--Table of Contents




Sec.
229.1 Purpose.
229.2 Authority.
229.3 Definitions.
229.4 Prohibited acts and criminal penalties.
229.5 Permit requirements and exceptions.
229.6 Application for permits and information collection.
229.7 Notification to Indian tribes of possible harm to, or destruction 
          of, sites on public lands having religious or cultural 
          importance.
229.8 Issuance of permits.
229.9 Terms and conditions of permits.
229.10 Suspension and revocation of permits.
229.11 Appeals relating to permits.
229.12 Relationship to section 106 of the National Historic Preservation 
          Act.
229.13 Custody of archaeological resources.
229.14 Determination of archaeological or commercial value and cost of 
          restoration and repair.
229.15 Assessment of civil penalties.
229.16 Civil penalty amounts.
229.17 Other penalties and rewards.
229.18 Confidentiality of archaeological resource information.
229.19 Report.
229.20 Public awareness programs.
229.21 Surveys and schedules.
    Note: The information collection and reporting requirements in this 
part were approved by the Office of Management and Budget under control 
number 1024-0037.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended, 102 Stat. 2983 
(16 U.S.C. 470aa-mm) (Sec. 10(a). Related Authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432, 433); Pub. L. 86-523, 74 Stat. 220, 221 (16 
U.S.C. 469), as amended, 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).

    Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted.



Sec. 229.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 
470aa-mm) by establishing the uniform definitions, standards, and 
procedures to be followed by all Federal land managers in providing 
protection for archaeological resources, located on public lands and 
Indian lands of the United States. These regulations enable Federal land 
managers to protect archaeological resources, taking into consideration 
provisions of the American Indian Religious Freedom Act (92 Stat. 469; 
42 U.S.C. 1996), through permits authorizing excavation and/or removal 
of archaeological resources, through civil penalties for unauthorized 
excavation and/or removal, through provisions for the preservation of 
archaeological resource collections and data, and through provisions for 
ensuring confidentiality of information about archaeological resources 
when disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation,

[[Page 445]]

and other multiple uses of the public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 229.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Secretaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the Tennessee Valley 
Authority jointly develop uniform rules and regulations for carrying out 
the purposes of the Act.
    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec. 229.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The followiing classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered

[[Page 446]]

archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is 
referred to NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Secretary of the Interior;
    (3) The Secretary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Secretary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
``Indian tribe'' means:
    (1) Any tribal entity which is included in the annual list of 
recognized tribes published in the Federal Register by the Secretary of 
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe 
which is recognized by the Secretary of the Interior as eligible for 
services provided by the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).

[49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984; 60 
FR 5260, Jan. 26, 1995]



Sec. 229.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological

[[Page 447]]

resource located on public lands or Indian lands unless such activity is 
pursuant to a permit issued under Sec. 229.8 or exempted by Sec. 
229.5(b) of this part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.
    (c) Under section (d) of the Act, any person who knowingly violates 
or counsels, procures, solicits, or employs any other person to violate 
any prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 229.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions in Sec. 229.8(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the public lands under other permits, leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal land manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses, or entitlements for use; 
any excavation and/or removal of archaeological resources required for 
compliance with those authorities shall be conducted in accordance with 
the permit requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not result in disturbance of any archaelogical 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.

[[Page 448]]

    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 229.6. However, the Federal land manager shall 
insure that provisions of Sec. 229.8 and Sec. 229.9 have been met by 
other documented means, and that any official duties which might result 
in harm to or destruction of any Indian tribal religious or cultural 
site, as determined by the Federal land manager, have been the subject 
of consideration under Sec. 229.7.
    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal land manager 
shall issue a permit, subject to the provisions of Sec. Sec. 
229.5(b)(5), 229.7, 229.8(a)(3), (4), (5), (6), and (7), 229.9, 229.10, 
229.12, and 229.13(a) to such Governor or to such designee as the 
Governor deems qualified to carry out the intent of the Act, for 
purposes of conducting archaeological research, excavating and/or 
removing archaeological resources, and safeguarding and preserving any 
materials and data collected in a university, museum, or other 
scientific or educational institution approved by the Federal land 
manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 229.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed in Sec. 229.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store all collections, and copies of records, 
data, photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other

[[Page 449]]

documents derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained in this section of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1024-0037. The purpose of the information 
collection is to meet statutory and administrative requirements in the 
public interest. The information will be used to assist Federal land 
managers in determining that applicants for permits are qualified, that 
the work proposed would further archaeological knowledge, that 
archaeological resources and associated records and data will be 
properly preserved, and that the permitted activity would not conflict 
with the management of the public lands involved. Response to the 
information requirement is necessary in order for an applicant to obtain 
a benefit.



Sec. 229.7  Notification to Indian tribes of possible harm to, or 

destruction of, sites on public lands having religious or cultural 
importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 229.9.
    (4) When the Federal land manager detemines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.

[[Page 450]]

    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for notification might include the 
discovery of human remains. When circumstances for special notification 
have been determined by the Federal land manager, the Federal land 
manager will include a requirement in the terms and conditions of 
permits, under Sec. 229.9(c), for permittees to notify the Federal land 
manger immediately upon the occurrence of such circumstances. Following 
the permittee's notification, the Federal land manager will notify and 
consult with the tribe or group as appropriate. In cases involving 
Native American human remains and other ``cultural items'', as defined 
by NAGPRA, the Federal land manager is referred to NAGPRA and its 
implementing regulations.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 229.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaelogical survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a) (2) 
and (3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following

[[Page 451]]

will be delivered to the appropriate official of the approved 
university, museum, mr other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.
    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land managers, the Federal land manager shall coordinate the 
review and evaluation of applications and the issuance of permits.

[49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984]



Sec. 229.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational insitutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to Sec. 229.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec. 229.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 229.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty under Sec. 229.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United

[[Page 452]]

States, its agents, or employees, when continuation of work under the 
permit would be in conflict with management requirements not in effect 
when the permit was issued. The Federal land manager shall provide 
written notice to the permittee stating the nature of and basis for the 
suspension or revocation.

[49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984]



Sec. 229.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec. 229.12  Relationship to section 106 of the National Historic 
Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec. 229.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Secretary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and other ``cultural 
items'', as defined by NAGPRA, that have been excavated, removed, or 
discovered on public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 229.14  Determination of archaeological or commercial value and 
cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 229.4 of this part or conditions 
of a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 229.4 of this part or conditions of a permit 
issued pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the

[[Page 453]]

condition of the archaeological resource prior to the violation, to the 
extent that its prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 229.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 229.4 or who 
has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If

[[Page 454]]

the person is a corporation, the petition must be signed by an officer 
authorized to sign such documents. The petition shall set forth in full 
the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c) and (d) of this section or furnished upon further request 
by the Federal land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal land manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal land manager shall determine a penalty amount in 
accordance with Sec. 229.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 229.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal land manager 
under paragraph (f) of this section or any offer of mitigation or 
remission made by the Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in

[[Page 455]]

which the person assessed a civil penalty is found, resides, or 
transacts business. Where the Federal land manager is not represented by 
the Attorney General, a civil action may be initiated directly by the 
Federal land manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 229.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition in Sec. 229.4 or of any term or condition included in a 
permit issued pursuant to this part, the maximum amount of the penalty 
shall be the full cost of restoration and repair of archaeological 
resources damaged plus the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 229.4 or of any term 
or condition included in a permit issued pursuant to this part, the 
maximum amount of the penalty shall be double the cost of restoration 
and repair plus double the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.

[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]



Sec. 229.17  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal lald manager 
may certify to the

[[Page 456]]

Secretary of the Treasury that a person is eligible to receive payment. 
Officers and employees of Federal, State, or local government who 
furnish information or render service in the performance of their 
official duties, and persons who have provided information under Sec. 
229.16(b)(1)(iii) shall not be certified eligible to receive payment of 
rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.



Sec. 229.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under subchapter II of chapter 5 of title 5 of the U.S. Code or any 
other provision of law, information concerning the nature and location 
of any archaeological resource, with the following exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469-469c), 
without risking harm to the archaeological resource or to the site in 
which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.

[49 FR 1027, Jan. 6, 1984, as amended at 49 FR 5923, Feb. 16, 1984]



Sec. 229.19  Report.

    (a) Each Federal land manager, when requested by the Secretary of 
the Interior, will submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Secretary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager under Sec. 229.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.
    (c) The comprehensive report by the Secretary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Secretary, 
will submit any available information on surveys and schedules and 
suspected violations in order to enable the Secretary to summarize in 
the comprehensive report actions taken pursuant to section 14 of the 
Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 229.20  Public awareness programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Secretary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 229.21  Surveys and schedules.

    (a) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each

[[Page 457]]

agency's control to determine the nature and extent of archaeological 
resources pursuant to section 14(a) of the Act. Such activities should 
be consistent with Federal agency planning policies and other historic 
preservation program responsibilities required by 16 U.S.C. 470 et seq. 
Survey plans prepared under this section will be designed to comply with 
the purpose of the Act regarding the protection of archaeological 
resources.
    (b) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will prepare schedules 
for surveying lands under each agency's control that are likely to 
contain the most scientifically valuable archaeological resources 
pursuant to section 14(b) of the Act. Such schedules will be developed 
based on objectives and information identified in survey plans described 
in paragraph (a) of this section and implemented systematically to cover 
areas where the most scientifically valuable archaeological resources 
are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Secretary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.

[60 FR 5260, 5261, Jan. 26, 1995]



PART 230_FINANCIAL INSTITUTIONS ON DOD INSTALLATIONS--Table of Contents




Sec.
230.1 Purpose.
230.2 Applicability.
230.3 Definitions.
230.4 Policy.
230.5 Responsibilities.

    Authority: 10 U.S.C. 136.

    Source: 66 FR 46373, Sept. 5, 2001, unless otherwise noted.



Sec. 230.1  Purpose.

    This part:
    (a) Updates policies and responsibilities for financial institutions 
that serve Department of Defense (DoD) personnel on DoD installations 
worldwide. Associated procedures are contained in 32 CFR part 231.
    (b) Prescribes consistent arrangements for the provision of services 
by financial institutions among the DoD Components, and requires that 
financial institutions operating on DoD installations provide, and are 
provided, support consistent with the policies stated in this part.



Sec. 230.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Chairman of the Joint Chiefs of Staff 
(JCS), the Combatant Commands, the Inspector General of the Department 
of Defense, the Defense Agencies, the DoD Field Activities, and all 
other organizational entities within the Department of Defense 
(hereafter collectively referred to as ``the DoD Components'') and all 
nonappropriated fund instrumentalities including the Military Exchange 
Services and morale, welfare and recreation (MWR) activities.



Sec. 230.3  Definitions.

    Terms used in this part are set forth in 32 CFR part 231.

[[Page 458]]



Sec. 230.4  Policy.

    (a) The following pertains to financial institutions on DoD 
installations:
    (1) Except where they already may exist as of May 1, 2000, no more 
than one banking institution and one credit union shall be permitted to 
operate on a DoD installation.
    (2) Upon the request of an installation commander and with the 
approval of the Secretary of the Military Department concerned (or 
designee), duly chartered financial institutions may be authorized to 
provide financial services on DoD installations to enhance the morale 
and welfare of DoD personnel and facilitate the administration of public 
and quasi-public monies. Arrangement for the provision of such services 
shall be in accordance with this part and the applicable provisions of 
32 CFR part 231.
    (3) Financial institutions or branches thereof, shall be established 
on DoD installations only after approval by the Secretary of the 
Military Department concerned (or designee) and the appropriate 
regulatory agency.
    (i) Except in limited situations overseas (see paragraph (b)(2)(iii) 
of this section), only banking institutions insured by the Federal 
Deposit Insurance Corporation and credit unions insured by the National 
Credit Union Share Insurance Fund or by another insurance organization 
specifically qualified by the Secretary of the Treasury, shall operate 
on DoD installations. These financial institutions may either be State 
or federally chartered; however, U.S. credit unions operated overseas 
shall be federally insured.
    (ii) Military banking facilities (MBFs) shall be established on DoD 
installations only when a demonstrated and justified need cannot be met 
through other means. An MBF is a financial institution that is 
established by the Department of the Treasury under statutory authority 
that is separate from State or Federal laws that govern commercial 
banking. Section 265 of title 12, United States Code contains the 
provisions for the Department of the Treasury to establish MBFs. 
Normally, MBFs shall be authorized only at overseas locations. This form 
of financial institution may be considered for use at domestic DoD 
installations only when the cognizant DoD Component has been unable to 
obtain, through normal means, financial services from a State or 
federally chartered financial institution authorized to operate in the 
State in which the installation is located. In times of mobilization, it 
may become necessary to designate additional MBFs as an emergency 
measure. The Director, Defense Finance and Accounting Service (DFAS) may 
recommend the designation of MBFs to the Department of the Treasury.
    (iii) Retail banking operations shall not be performed by any DoD 
Component. Solicitations for such services shall be issued, or proposals 
accepted, only in accordance with the policies identified in this part. 
The DoD Components shall rely on commercially available sources in 
accordance with DoD Directive 4100.15.\1\
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (4) Installation commanders shall not seek the provision of 
financial services from any entity other than the on-base banking office 
or credit union. The Director, DFAS, with the concurrence of the Under 
Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to 
this policy.
    (5) Financial institutions authorized to locate on DoD installations 
shall be provided logistic support as set forth in 32 CFR part 231.
    (6) Military disbursing offices, nonappropriated fund 
instrumentalities (including MWR activities and the Military Exchange 
Services) and other DoD Component activities requiring financial 
services shall use on-base financial institutions to the maximum extent 
feasible.
    (7) The Department encourages the delivery of retail financial 
services on DoD installations via nationally networked automated teller 
machines (ATMs).
    (i) ATMs are considered electronic banking services and, as such, 
shall be provided only by financial institutions that are chartered and 
insured in accordance with the provisions of paragraph (a)(3) of this 
section.
    (ii) Proposals by the installation commander to install ATMs from 
other than on-base financial institutions

[[Page 459]]

shall comply with the provisions of paragraph (a)(4) of this section.
    (8) Expansion of financial services (to include in-store banking) 
requiring the outgrant of additional space or logistical support shall 
be approved by the installation commander. Any DoD activity or financial 
institution seeking to expand financial services shall coordinate such 
requests with the installation bank/credit union liaison officer prior 
to the commander's consideration.
    (9) The installation commander shall ensure, to the maximum extent 
feasible, that all financial institutions operating on that installation 
are given the opportunity to participate in pilot programs to 
demonstrate new financial-related technology or establish new business 
lines (e.g., in-store banking) where a determination has been made by 
the respective DoD Component that the offering of such services is 
warranted.
    (10) The installation commander shall approve requests for 
termination of financial services that are substantiated by sufficient 
evidence and forwarded to the Secretary of the Military Department 
concerned (or designee). The Secretary of the Military Department (or 
designee) shall coordinate such requests with the USD(C), through the 
Director, DFAS, before notification to the appropriate regulatory 
agency.
    (11) Additional guidance pertaining to financial services is set 
forth in 32 CFR part 231.
    (b) The following additional provisions pertain only to financial 
institutions on overseas DoD installations:
    (1) The extension of services by MBFs and credit unions overseas 
shall be consistent with the policies stated in this part and with the 
applicable status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (2) Financial services at overseas DoD installations may be provided 
by:
    (i) Domestic on-base credit unions operating overseas under a 
geographic franchise and, where applicable, as authorized by the 
pertinent status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (ii) MBFs operated under and authorized by the pertinent status of 
forces agreement, other intergovernmental agreement, or host-country 
law.
    (iii) Domestic and foreign banks located on overseas DoD 
installations that are:
    (A) Chartered to provide financial services in that country, and
    (B) A party to a formal operating agreement with the installation 
commander to provide such services, and
    (C) Identified, where applicable, in the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (3) In countries served by MBFs operated under contract, 
nonappropriated fund instrumentalities and on-base credit unions that 
desire, and are authorized, to provide accommodation exchange services 
shall acquire foreign currency from the MBF at the MBF accommodation 
rate; and shall sell such foreign currency at a rate of exchange that is 
no more favorable to the customer than the customer rate available at 
the MBF.



Sec. 230.5  Responsibilities.

    (a) The Under Secretary of Defense (Comptroller) (USD(C)) shall 
develop policies governing establishment, operation, and termination of 
financial institutions on DoD installations and take final action on 
requests for exceptions to this part.
    (b) The Under Secretary of Defense (Acquisition, Technology and 
Logistics) (USD(AT&L)) shall monitor policies and procedures governing 
logistical support furnished to financial institutions on DoD 
installations, including the use of DoD real property and equipment.
    (c) The Under Secretary of Defense (Personnel and Readiness) 
(USD(P&R)) shall advise the USD(C) on all aspects of on-base financial 
institution services that affect the morale and welfare of DoD 
personnel.
    (d) DoD Component responsibilities pertaining to this part are set 
forth in 32 CFR part 231.

[[Page 460]]



PART 231_PROCEDURES GOVERNING BANKS, CREDIT UNIONS AND OTHER FINANCIAL 
INSTITUTIONS ON DOD INSTALLATIONS--Table of Contents




                          Subpart A_Guidelines

Sec.
231.1 Overview.
231.2 Policy.
231.3 Responsibilities.
231.4 General provisions.
231.5 Procedures--domestic banks.
231.6 Procedures--overseas banks.
231.7 Procedures--domestic credit unions.
231.8 Procedures--overseas credit unions.
231.9 Definitions.

                     Subpart B_DoD Directive 1000.11

231.10 Financial institutions on DoD installations.

 Subpart C_Guidelines for Applications of the Privacy Act to Financial 
                         Institution Operations

231.11 Guidelines.

Appendix A to Part 231--Sample Operating Agreement Between Military 
          Installations and Financial Institutions
Appendix B to Part 231--In-store Banking.
Appendix C to Part 231--Sample certificate of compliance for credit 
          unions.

    Authority: 10 U.S.C. 136.

    Source: 66 FR 46708, Sept. 7, 2001, unless otherwise noted.



                          Subpart A_Guidelines



Sec. 231.1  Overview.

    (a) Purpose. This part implements DoD Directive 1000.11 (32 CFR part 
230) \1\ and prescribes guidance and procedures governing the 
establishment, support, operation, and termination of banks and credit 
unions operating on DoD installations worldwide, to include military 
banking facilities (MBFs). In addition, this part provides guidance 
intended to ensure that arrangements for the provision of services by 
financial institutions are consistent among DoD Components, and that 
financial institutions operating on DoD installations provide, and are 
provided, support consistent with the guidance and procedures stated 
herein.
---------------------------------------------------------------------------

    \1\ Copies may be obtained via Internet at http://www.dtic.whs/
directives.
---------------------------------------------------------------------------

    (b) Applicability. This part applies to the Office of the Secretary 
of Defense (OSD), the Military Departments, the Joint Chiefs of Staff 
(JCS), the Joint Staff and the supporting Joint Agencies, the Combatant 
Commands, the Inspector General of the Department of Defense (IG, DoD), 
the Defense Agencies, the DoD Field Activities, the Uniformed Services 
University of the Health Sciences (USUHS), all DoD nonappropriated fund 
instrumentalities including the Military Exchange Services and morale, 
welfare and recreation (MWR) activities, and all other organizational 
entities within the Department of Defense.



Sec. 231.2  Policy.

    The policy pertaining to financial institutions operating on DoD 
installations is contained in DoD Directive 1000.11 (32 CFR part 230) 
and in Sec. 231.4.



Sec. 231.3  Responsibilities.

    (a) The Under Secretary of Defense (Comptroller) (USD(C)) shall 
develop and monitor policies governing establishment, operation, and 
termination of financial institutions on DoD installations and take 
final action on requests for exceptions to this part.
    (b) The Under Secretary of Defense (Acquisition, Technology and 
Logistics) (USD(AT&L)) shall monitor policies and procedures governing 
logistical support furnished to financial institutions on DoD 
installations, including the use of DoD real property and equipment.
    (c) The Under Secretary of Defense (Personnel and Readiness) 
(USD(P&R)) shall advise the USD(C) on all aspects of on-base financial 
institution services that affect the morale and welfare of DoD 
personnel.
    (d) The Director, Defense Finance and Accounting Service (DFAS) 
shall:
    (1) Develop procedures governing banks and credit unions on DoD 
installations for promulgation in this part.
    (2) For domestic DoD installations, coordinate with the Secretaries 
of the Military Departments (or designees) on requests from subordinate 
installation commanders to establish or terminate banking offices or on-
base credit

[[Page 461]]

unions. For overseas DoD installations, coordinate with the Secretary of 
the Military Department concerned (or designee) on requests from 
subordinate installation commanders to establish or discontinue the 
provision of financial services from the on-base financial institution 
under contract with the Department of Defense or to establish or 
terminate banking offices or credit unions located on DoD installations.
    (3) In coordination with affected DoD Components, authorize the 
specific types of banking services that will be provided by overseas 
military banking facilities (MBFs) and specify the charges or fees, or 
the basis for these, to be levied on users of these services.
    (4) Coordinate with the Fiscal Assistant Secretary of the Treasury 
on the designation of domestic and overseas MBFs as depositaries and 
financial agents of the U.S. Government.
    (5) Designate a technical representative to provide policy direction 
for the procuring and administrative contracting officer(s) responsible 
under the Federal Acquisition Regulation (FAR) for acquiring banking 
services required at overseas DoD installations.
    (6) Serve as principal liaison with banking institutions having 
offices on overseas DoD installations. In this capacity, monitor MBF 
managerial and operational policies, procedures, and operating results 
and take action as appropriate.
    (7) As necessary, assist in the formation of government-to-
government agreements for the provision of banking services on overseas 
DoD installations, in accordance with DoD Directive 5530.3 \2\.
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    \2\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (8) Provide procedural guidance to DoD Components, as required.
    (9) Maintain liaison with financial institution trade associations, 
leagues, and councils in order to interpret DoD policies toward 
respective memberships and aid in resolving mutual concerns affecting 
the provision of financial services.
    (10) Coordinate with the USD(P&R), through the USD(C), on all 
aspects of morale and welfare and with the USD(AT&L), through the 
USD(C), on all aspects of logistic support for on-base financial 
institutions.
    (11) Monitor industry trends, conduct studies and surveys, and 
facilitate appropriate dialogues on banking and credit union 
arrangements and cost-benefit relationships, coordinate as necessary 
with DoD Components, financial institutions, and trade associations as 
appropriate.
    (12) Maintain liaison, as appropriate, with financial institution 
regulatory agencies at federal and state levels.
    (13) Ensure that recommendations of the Combatant Commands are 
considered before processing requests for overseas banking and credit 
union service or related actions.
    (14) Maintain a listing of all geographic franchises assigned to 
credit unions serving DoD overseas installations.
    (e) Secretaries of the Military Departments (or designees) shall:
    (1) For domestic DoD installations, take action on requests from 
subordinate installation commanders to establish or terminate financial 
institution operations. For overseas DoD installations, take action in 
accordance with guidance contained herein on requests from subordinate 
installation commanders to establish or discontinue the provision of 
financial services from the DoD contracted banking institution, or to 
establish or terminate other financial institutions located on DoD 
installations.
    (2) Provide for liaison to those financial institutions that operate 
banking offices on respective domestic DoD installations.
    (3) Oversee the use of banking offices and credit unions on 
respective DoD installations within the guidance contained herein and in 
DoD Directive 1000.11 (32 CFR part 230).
    (4) Evaluate the services provided and related charges and fees by 
respective on-base banking offices and credit unions to ensure that they 
fulfill the requirements upon which the establishment and retention of 
those services were justified.
    (5) Monitor practices and procedures of respective banking offices 
and credit unions to ensure that the welfare and interests of DoD 
personnel as consumers are protected.

[[Page 462]]

    (6) Assist on-base banking offices and credit unions to develop and 
expand necessary services for DoD personnel consistent with this part.
    (7) Encourage the conversion of existing domestic MBFs on respective 
installations to independent or branch bank status where feasible.
    (8) Provide logistical support to overseas MBFs under terms and 
conditions identified in this part as well as with the applicable terms 
of DoD contracts with financial institutions responsible for the 
operations of overseas MBFs.
    (9) Refer matters requiring policy decisions or proposed changes to 
this part or DoD Directive 1000.11 (32 CFR part 230) to the USD(C) 
through the Director, DFAS.
    (10) Monitor and encourage the use of financial institutions on DoD 
installations to accomplish the following ends.
    (i) Facilitate convenient, effective management of the appropriated, 
nonappropriated, and private funds of on-base activities.
    (ii) Assist DoD personnel in managing their personal finances 
through participation in programs such as direct deposit and regular 
savings plans, including U.S. savings bonds. The use of on-base 
financial institutions shall be on a voluntary basis and should not be 
urged in preference to, or to the exclusion of, other financial 
institutions.
    (11) Encourage and assist duly chartered financial institutions on 
domestic DoD installations to provide complete financial services to 
include, without charge, basic financial education and counseling 
services. Financial education and counseling services refer to basic 
personal and family finances such as budgeting, checkbook balancing and 
account reconciliation, benefits of savings, prudent use of credit, how 
to start a savings program, how to shop and apply for credit, and the 
consequences of excessive credit.
    (12) Establish liaison, as appropriate, with federal and state 
regulatory agencies and financial institution trade associations, 
leagues, and councils.
    (13) Make military locator services available to on-base financial 
institutions in accordance with the Privacy Act guidelines in subpart B 
of this part.
    (14) Permit DoD personnel to serve on volunteer boards or committees 
of on-base financial institutions, without compensation, when neither a 
conflict of duty nor a conflict of interest is involved, in accordance 
with DoD Directive 5500.7.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (15) Allow DoD personnel to attend conferences and meetings that 
bring together representatives of on-base financial institutions, when 
neither a conflict of duty nor a conflict of interest is involved, in 
accordance with DoD Directive 1327.5,\4\ subchapter 630 of the DoD 
Civilian Personnel Manual (DoD 1400.25-M \5\), and Comptroller General 
Decision B-212457.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 231.1(a).
    \5\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (f) The Commanders of the Combatant Commands (or designees) shall:
    (1) Ensure the appropriate coordination of the following types of 
requests affecting financial institutions overseas.
    (i) Establish financial institutions in countries not presently 
served. Such requests will include a statement that the requirement has 
been coordinated with the U.S. Chief of Diplomatic Mission or U.S. 
Embassy and that the host country will permit the operation.
    (ii) Eliminate any or all financial institutions on DoD 
installations within a foreign country. Such requests will include a 
statement that the U.S. Chief of Diplomatic Mission has been informed 
and that appropriate arrangements to coordinate local termination 
announcements and procedures have been made with the U.S. Embassy.
    (2) Monitor and coordinate military banking operations within the 
command area. Personnel assigned to security assistance positions will 
not perform this function without the prior approval of the Director, 
Defense Security Cooperation Agency (DSCA).
    (g) The Commanders of Major Commands and subordinate installation 
commanders shall:
    (1) Monitor the banking and credit union program within their 
commands.
    (2) Coordinate requests to establish or construct bank and credit 
union offices or terminate logistical support as specified in this part 
to banks and

[[Page 463]]

credit unions within their commands. Personnel assigned to overseas 
security assistance positions will not monitor, coordinate, or assist in 
military banking operations without the prior approval of the DSCA.
    (3) Assign, as appropriate, responsibility for paragraphs (g)(1) and 
(g)(2) of this section, to comptroller or resource management personnel.
    (4) Cooperate with financial institution associations, leagues, and 
councils.
    (5) Recognize the right of all DoD personnel to organize and join 
credit unions and promote the credit union movement in DoD worldwide.
    (6) Permit DoD personnel to serve on volunteer boards or committees 
of on-base financial institutions, without compensation, when neither a 
conflict of duty nor a conflict of interest is involved, in accordance 
with DoD Directive 5500.7.
    (7) Allow DoD personnel to attend conferences and meetings that 
bring together representatives of on-base financial institutions, when 
neither a conflict of duty nor a conflict of interest is involved, in 
accordance with DoD Directive 1327.5, Subchapter 630 of the DoD Civilian 
Personnel Manual (DoD 1400.25-M), and Comptroller General Decision B-
212457.
    (8) Seek the provision of financial services only from existing on-
base financial institutions, proposing alternatives only where on-base 
financial institutions fail to respond favorably to a valid requirement.



Sec. 231.4  General provisions.

    (a) Security. The installation commander (or designee) and officials 
of the on-base financial institutions shall work with the installation 
security authorities to establish an understanding as to each entity's 
responsibilities. The on-base financial institutions are encouraged to 
establish an ongoing relationship with installation security authorities 
on all matters of asset protection.
    (1) A written agreement shall be established outlining the security 
procedures that the financial institution will follow and the role that 
installation security authorities will play with regard to alarms, 
movement of cash, and procedures to be followed in response to criminal 
activity (e.g., armed robbery).
    (2) Cash and other assets in on-base banking offices and credit 
unions are the property of those financial institutions. Maintenance of 
alarms and use of armored cars is the sole responsibility of the on-base 
financial institution. The on-base financial institution is also solely 
responsible for the guarding or escorting of cash unless the 
installation commander determines that providing such services is 
desirable or necessary.
    (b) Central locator services. Military locator services shall be 
provided per the guidelines in subpart B of this part.
    (1) When appropriate, installations will process financial 
institution requests for central locator service to obtain military 
addresses of active duty personnel. This service will be used to locate 
persons for settling accounts, and recovering funds on checks that did 
not clear or loans that are delinquent or in default (see DoD Directive 
1344.9 \6\). If delinquent loans or dishonored checks are not recouped 
within 48 hours, financial institutions operating on DoD installations 
may bring this information to the attention of the local commander, bank 
liaison officer, or other designee for assistance in effecting 
restitution of the amount due, if not otherwise prohibited by law. The 
financial institution will pay the appropriate fee for each request to 
the respective Military Department.
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (2) The DoD Components shall assist financial institutions to locate 
DoD personnel whose whereabouts cannot be locally determined. The 
request should be on the financial institution's letterhead, include the 
Service member's name and social security number, and cite the cognizant 
Military Service regulation that authorizes the use of locator services. 
If a financial institution needs immediate service, the cognizant 
institution official should contact the bank or credit union liaison 
officer.
    (i) For addresses of Department of the Army active, retired, 
separated and civilian personnel, financial institutions may telephone 
(703) 325-3732 or

[[Page 464]]

write to: Department of the Army Worldwide Locator, U.S. Army Enlisted 
Record and Evaluation Center, 8899 E. 56th Street, Indianapolis, IN 
46249-5301.
    (ii) For addresses of Navy active, retired, separated and civilian 
personnel, financial institutions may telephone (901) 874-3388 or write 
to: Navy Personnel Command, PERS-312F, 5720 Integrity Drive, Millington, 
TN 38055-3120.
    (iii) For addresses of Department of the Air Force active, retired, 
separated and civilian personnel, financial institutions may telephone 
(210) 565-2660 or write to: Air Force Personnel Center, MSIMDL Suite 50, 
550 C Street West, Randolph AFB, TX 78150-4752.
    (iv) For addresses of United States Marine Corps active, retired, 
separated and civilian personnel, financial institutions may telephone 
(703) 784-3942 or write to:

                                 Active

U.S. Marine Corps--CMC, HQ MC MMS B 10, 2008 Elliot Road, Room 201, 
    Quantico, VA 22134-5030.

                            Retired-Separated

Q U.S. MMRS-6, 280 Russell Road, Quantico, VA 22134-5105.

                                Civilian

Commanding General, 15303 Andrew Road, Kansas City, MO 64147-1207.
    (c) Advertising.
    (1) An on-base financial institution may use the unofficial section 
of that installation's daily bulletin, provided space is available, to 
inform DoD personnel of financial services and announce seminars, 
consumer information programs, and other matters of broad general 
interest. Announcements of free financial counseling services are 
encouraged. Such media may not be used for competitive or comparative 
advertising of, for example, specific interest rates on savings or 
loans.
    (2) An on-base financial institution may use installation bulletin 
boards, newsletters or web pages to post general information that 
complements the installation's financial counseling programs and 
promotes financial responsibility and thrift. Message center services 
may distribute a reasonable number of announcements to units for use on 
bulletin boards so long as this does not impose an unreasonable 
workload.
    (3) An on-base financial institution may include an insert in the 
installation's newcomers package (or equivalent). This insert should 
benefit newcomers by identifying the financial services that are 
available on the installation.
    (4) DoD Directive 5120.20 \7\ prevents use of the Armed Forces Radio 
and Television Service to promote a specific financial institution.
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    \7\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (5) Off-base financial institutions are not permitted to distribute 
competitive literature or forms on the installation. These institutions, 
however, may use commercial advertising, mailings or telecommunications 
to reach their customers.
    (6) Advertising in government-funded (official) installation papers 
is not permitted with the exception of insert advertising in the Stars 
and Stripes overseas. Installation newspapers funded by advertisers are 
not official publications and, thus, may include advertising paid for by 
any financial institution.
    (7) Installation activities, including Military Exchange Services 
and concessionaire outlets, shall not permit the distribution of 
literature from off-base financial institutions if there is an on-base 
financial institution. This does not prevent the Military Exchange 
Services from distributing literature on affinity credit card services 
that those Military Exchange Services may acquire centrally through 
competitive solicitation.
    (d) Automated teller machine (ATM) service. On-base financial 
institutions are encouraged to install ATMs at those installation(s) on 
which they are located.
    (1) Financial institutions that propose to install ATMs on DoD 
installations shall bear the cost of ATM installation, maintenance and 
operation. The installation commander may enter into an agreement with 
the on-base financial institution wherein the installation may acquire 
and provide ATMs to on-base financial institutions under certain 
circumstances, such as when it

[[Page 465]]

is advantageous to the government to have one or more ATMs available for 
use but the acquisition cost to the financial institution is 
prohibitive. No ATM shall be purchased by an installation unless 
approved by the Secretary of the Military Department concerned (or 
designee). In all such cases, installation costs and all logistic 
support shall be borne by the financial institution.
    (2) ATM approval authority is as shown:
    (i) The installation commander has approval authority when an on-
base financial institution wishes to place an ATM on the installation. 
This approval should be reflected as an amendment to the operating 
agreement.
    (ii) Where there is no on-base financial institution, follow the 
solicitation procedures to obtain financial services set forth in 
Sec. Sec. 231.5(c) and 231.7(b).
    (3) The availability of ATM service shall not preclude the later 
establishment of a banking office should conditions change on an 
installation.
    (4) Proposals by an installation commander to install ATMs on 
domestic installations from other than on-base financial institutions, 
including the Military Exchange Services, morale, welfare and 
recreational activities and/or other nonappropriated fund 
instrumentalities, shall be considered only when:
    (i) ATM service is unavailable or existing service is inadequate, 
and
    (ii) The on-base financial institution(s) either declines to provide 
the service, fails to improve existing service so that it is adequate, 
or does not formally respond to the request for such service within 30 
days of the date of the request. Any ATM service from other than on-base 
financial institutions is considered an exception to policy. The 
procedures to establish an on-base financial institution set forth in 
Sec. Sec. 231.5(c) and 231.7(b) shall be followed when soliciting for 
such ATM services. Proposals offering shared-access ATMs (e.g., ATMs 
operated by two or more financial institutions where their 
accountholders are not assessed any or all fees applicable to 
nonaccountholders) shall receive preference.
    (5) ATM service from foreign banking institutions may be authorized 
on overseas installations with or without MBFs operated under contract 
where the installation or community commander determines that a bonafide 
need exists to support local national hires. On installations with MBFs 
operated under contract, the MBFs shall be the primary source of the ATM 
service except when a determination has been made by the cognizant 
contract program office that providing the service is either not cost 
effective or precluded by pertinent status of forces agreements, other 
intergovernmental agreements or host-country law. In those instances 
where ATM service from foreign banking institutions is authorized and 
provided by other than the on-base financial institution, ATM 
connectivity shall be limited to host country networks and the ATMs 
shall dispense only local currency (no U.S. dollars). The operating 
agreement covering ATM service shall be negotiated by the installation 
or community commander and submitted for approval by the appropriate 
Combatant Commander (or designee) prior to its execution. A copy of the 
operating agreement will be forwarded through DoD Component channels to 
the DFAS.
    (e) Domestic and international treasury general accounts. In cases 
where authorization will be required for the on-base banking office or 
credit union to act as a Treasury General Account (TGA) domestic 
depositary (or, on overseas installations, an International Treasury 
General Account (ITGA) depository), the financial institution shall 
satisfy the risk management standard established by the Secretary of the 
Treasury. Local operating funds may be used if the on-base financial 
institution requests reimbursement for costs incurred. On-base financial 
institutions shall accept deposits for credit to the TGA (or ITGA) when 
so authorized.
    (f) Staffing. (1) On-base financial institutions shall be staffed 
adequately (i.e., commensurate with industry standards for similar 
numbers of accountholders and financial services rendered). Staffing at 
overseas MBFs operated under DoD contract shall be maintained within 
negotiated ceilings.

[[Page 466]]

    (2) All staffing shall comply fully with applicable equal employment 
opportunity laws and with the spirit of DoD equal employment opportunity 
policies as set forth in DoD Directive 1440.1.\8\
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    \8\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (3) DoD personnel, excluding military retirees and their dependents, 
may not serve as directors of domestic or foreign banking institutions 
operating banking offices on those DoD installations where they 
currently are assigned. This does not preclude a member of a Reserve 
Component, who has been serving as a director of a domestic or foreign 
banking institution operating a banking office on a DoD installation, 
from retaining his or her directorship if called to active duty.
    (4) DoD personnel may not be detailed to duty with an on-base 
financial institution located on a DoD installation. Off-duty personnel, 
however, may be employed by an on-base financial institution subject to 
approval by the installation commander (or designee). Such employment 
must not interfere with the performance of the individual's official 
duties and responsibilities.
    (g) Departure clearance. The installation commander establishes the 
clearance policy for all DoD personnel leaving the installation. The on-
base financial institutions shall be included as places requiring 
clearance. The purpose of a clearance is to report change of address, 
reaffirm allotments or outstanding debts, and receive financial 
counseling, if desired or appropriate. Clearance may not be denied in 
order to collect debts or resolve disputes with financial institution 
management.
    (h) Financial education. (1) Officials of on-base financial 
institutions shall be invited to take part in seminars to educate 
personnel on personal financial management and financial services. 
Financial institutions shall be encouraged to provide financial 
education and counseling services as an integral part of their financial 
service offerings. Officials of on-base financial institutions shall 
submit advance briefing texts for approval by the installation commander 
to ensure that the program is not used to promote services of a specific 
financial institution.
    (2) DoD personnel who tender uncollectable checks, overdraw their 
accounts or fail to meet their financial obligations in a proper and 
timely manner damage their credit reputation and adversely affect the 
public image of all government personnel. For uniformed personnel, 
military financial counselors and legal advisors shall recommend 
workable repayment plans that avoid further endangering credit ratings 
and counsel affected personnel to protect their credit standing and 
career. Counselors shall ensure that such personnel are aware of the 
stigma associated with bankruptcy and difficulties in obtaining future 
credit at reasonable rates and terms and shall recommend its use only 
when no other alternative will alleviate the situation.
    (i) Operating agreements. (1) Before operations of an on-base 
banking office or credit union begin, a written operating agreement 
(Appendix C of this part) and the appropriate real estate outgrant 
(i.e., a lease, permit or license issued as identified in Sec. Sec. 
231.5(e), 231.5(f), 231.5(g), 231.7(d), 231.7(e) and 231.7(f) shall be 
negotiated directly between the installation commander and officials of 
the designated financial institution. Thereafter, the operating 
agreement shall be jointly reviewed by the installation commander and 
the financial institution at least once every 5 years. The operating 
agreement shall define the basic relationship between the on-base 
financial institution and the installation commander and identify mutual 
support activities such as hours of operation, service fees and security 
provided. One copy of the agreement shall be sent through command 
channels to the Secretary of the Military Department concerned (or 
designee). A copy of the agreement shall be maintained by the 
installation commander and the banking office or on-base credit union. 
At a minimum, the agreement shall include the following provisions:
    (i) Identification of services to be rendered and the conditions for 
service. Full financial services shall be provided where feasible. 
Agreements, however, may not restrict either entity's right to 
renegotiate services and fees.

[[Page 467]]

    (ii) Agreement by both parties that they will comply with this part 
and DoD Directive 1000.11 (32 CFR part 230).
    (iii) Agreement by the on-base financial institution that it will 
furnish copies of its financial reports and other local publications on 
an ``as needed'' basis in response to a formal request from the 
installation commander (or designee).
    (iv) Agreement that the on-base financial institution will indemnify 
and hold harmless the U.S. Government from (and against) any loss, 
expense, claim, or demand to which the U.S. Government may be subjected 
as a result of death, loss, destruction, or damage in conjunction with 
the use and occupancy of the premises caused in whole or in part by 
agents or employees of the on-base financial institution.
    (v) Agreement that neither the Department of Defense nor its 
representatives shall be responsible or liable for the financial 
operation of the on-base financial institution or for any loss 
(including criminal losses), expense, or claim for damages arising from 
operations.
    (vi) Agreement by the on-base financial institution (or any 
successor) that it will provide no less than 180 days advance written 
notice to the installation commander before ceasing operations.
    (vii) Specification of the security services to be provided for 
guarding cash shipments, at times of unusual risk to the financial 
institution and to avoid excessive insurance costs charged to that 
institution.
    (viii) Statement that the physical security for cash and negotiable 
items will be in a manner consistent with the requirements of the on-
base financial institution's insurer. A copy of those requirements will 
be provided to the installation commander on request.
    (ix) Statement that the financial institution, whenever possible, 
will accommodate local command requests for lectures and printed 
materials for consumer credit education programs. Officials invited to 
participate in such programs shall not use the occasion to promote the 
exclusive services of a particular financial institution.
    (x) Agreement that the financial institution will reimburse the 
installation for the provision of logistical support (such as custodial, 
janitorial, and other services provided by the government) at rates set 
forth in the lease or agreement between the installation and the 
financial institution.
    (xi) Statement that on-base financial institution operations shall 
be terminated, when required, under provisions specified in this part.
    (2) Approved expansion of services will be documented as an 
amendment to the existing operating agreement between the installation 
commander and the on-base financial institution. The amendment to the 
operating agreement and any required lease (to include a change to an 
existing lease) shall be in place prior to the initiation of new 
financial services or offices.
    (j) Installation financial services. (1) Retail banking operations 
shall not be performed by any DoD Component or nonappropriated fund 
instrumentality including the Military Exchange Services and morale, 
welfare and recreation (MWR) activities or any other organizational 
entity within the Department of Defense.
    (2) Financial services provided on DoD installations will be as 
uniform as possible for all personnel. As separately negotiated, or 
based on a fee schedule, custodians of nonappropriated funds shall 
compensate on-base financial institutions for services received. 
Compensation may be made with compensating balances or paying fees based 
on the services provided or a combination of these payment mechanisms. 
Fees shall not exceed the charge customary for the financial institution 
less an offsetting credit on balances maintained. Banking offices shall 
classify nonappropriated fund accounts as commercial accounts.
    (3) At a minimum, banking offices shall provide the same services to 
individuals and nonappropriated fund instrumentalities as are available 
in the surrounding geographic area.
    (4) On-base financial institutions may conduct operations during 
normal duty hours provided they do not disrupt the performance of 
official duties. Operating hours shall be set, in consultation with the 
bank or credit union liaison officer, to meet the needs of all

[[Page 468]]

concerned. ATMs may be used to expand financial services and operating 
hours.
    (5) DoD personnel may use their allotment of pay privileges to 
establish sound credit and savings practices through on-base financial 
institutions.
    (i) The on-base financial institution shall credit customer accounts 
not later than the deposit date of the allotment check or electronic 
funds transfer.
    (ii) The initiation of an allotment is voluntary (See Volume 7a, 
Chapter 42, Section 4202 of The DoD Financial Management Regulation 
(7200.14-R)). Thus, DoD personnel generally cannot be required to 
initiate an allotment for the repayment of a loan. Allotments 
voluntarily established by DoD personnel for the purpose of repaying a 
loan or otherwise providing funds to an on-base financial institution 
shall continue in effect at the option of the allotter.
    (6) In accordance with sound lending practice, policies on loans to 
individuals are expected to be as liberal as feasible while remaining 
consistent with the overall interests of the on-base financial 
institution. On-base financial institutions shall conform to the 
Standards of Fairness principles before executing loan or credit 
agreements. See DoD Directive 1344.9.
    (7) On-base financial institutions shall make basic financial 
education and counseling services available without charge to 
individuals seeking these services. Financial education and counseling 
services refer to basic personal and family finances such as budgeting, 
checkbook balancing and account reconciliation, benefits of savings, 
prudent use of credit, how to start a savings program, how to shop and 
apply for credit, and the consequences of excessive credit. DoD 
personnel in junior enlisted or civilian grades, or newly married 
couples who apply for loans, shall be given special attention and 
counseling.
    (8) On-base financial institutions must strive to provide the best 
service to all customers. On-base financial institutions that evidence a 
policy of discrimination in their services are in violation of this 
part. In resolving complaints of discrimination, use the procedures 
specified in Sec. 231.5(h)(8).
    (9) All correspondence regarding on-base financial institutions, and 
questions concerning their operation that cannot be resolved locally, 
shall be referred through command channels to the Secretary of the 
Military Department concerned (or designee) for consideration.



Sec. 231.5  Procedures--domestic banks.

    (a) General policy. Given their role in promoting morale and 
welfare, on-base banks shall be recognized and assisted by DoD 
Components at all levels.
    (b) Establishment. (1) The following information shall be included 
in the installation commander's request to the Secretary of the Military 
Department concerned (or designee) for establishment of banking offices:
    (i) The approximate number of DoD personnel at the installation, and 
other persons who may be authorized to use the banking office.
    (ii) The distance between the installation and the financial 
institutions in the vicinity, and the names of those institutions.
    (iii) Available transportation between the installation and the 
financial institutions listed in paragraph (b)(1)(ii) of this section.
    (iv) The number of DoD personnel in duty assignments that confine 
them to the installation or who cannot obtain transportation (such as 
hospital patients).
    (v) The name and location of the depositary used to make official 
deposits for credit to the TGA.
    (vi) A list of organizational and nonappropriated fund accounts, the 
name and location of the financial institutions where deposited, and the 
average daily activity and balance of each account.
    (vii) A written description and photographs of the space proposed 
for banking office use.
    (viii) A statement listing the requirements of the proposed banking 
office for safes and a vault, alarm systems, and surveillance equipment, 
when necessary.
    (ix) Reasons for use of space controlled by the General Services 
Administration (GSA). All the GSA assigned

[[Page 469]]

space, whether leased space or federal office building space, is 
reimbursable to the GSA at the standard level user charge. As such, 
space occupied by a banking office to serve military needs will be 
assigned and charged by the GSA.
    (x) Any other information pertinent to the establishment of a 
banking office.
    (2) The Secretary of the Military Departments (or designee) shall:
    (i) Review each request for the establishment of banking offices.
    (ii) Conduct a solicitation for the services when warranted.
    (iii) Approve proposals for banking offices.
    (iv) Notify the selected financial institution either directly or 
through the installation commander. The selected banking institution 
will, in turn, obtain operating authority from their regulating 
agencies.
    (v) Forward proposals to establish TGAs to the DFAS for subsequent 
forwarding to the Fiscal Assistant Secretary of the Treasury in 
accordance with Volume 5, Chapter 5, paragraph 050102 of The DoD 
Financial Management Regulation (7000.14-R).
    (c) Solicitations. The Secretary of the Military Department 
concerned (or designee), or the installation commander with advice from 
the cognizant Secretary of the Military Department (or designee), shall 
conduct solicitations to include pre-proposal conferences for on-base 
banking. Subject to the criteria for selection outlined in paragraph 
(c)(4) of this section the preferred sources of on-base financial 
services at domestic installations are federally-insured, state-
chartered or federally-insured, federally-chartered banking institutions 
operating in the local area. The guidance at paragraph (c)(1) of this 
section addresses distribution of the solicitation only and does not 
preclude any federally-insured, state-chartered or federally-insured, 
federally-chartered banking institution from responding at any stage 
(from local distribution in paragraph (c)(1)(i) of this section to 
publication in the Commerce Business Daily and financial institution 
trade journals as outlined in paragraph (c)(1)(iii) of this section of 
the solicitation process. No commitment may be made to any banking 
institution regarding its proposal until a designation is made by the 
appropriate regulatory agency.
    (1) Solicitations for banking services shall be accomplished in the 
following order:
    (i) Solicitation letters will be sent to local banking institutions 
and a solicitation announcement will be published in the local 
newspaper(s) and forwarded to financial institution associations.
    (ii) If the Secretary of the Military Department concerned (or 
designee) or, where delegated, the installation commander, determines 
that the geographic scope of the solicitation needs to be expanded, a 
prospectus will be forwarded to financial institutions in a larger 
geographic area, as well as financial institution associations and 
regulatory authorities in the state where the installation is located.
    (iii) If the Secretary of the Military Department concerned (or 
designee) or, where delegated, the installation commander, determines 
that the geographic scope of the solicitation needs to be expanded 
further, the prospectus will be published in the Commerce Business Daily 
and financial institution trade journals.
    (2) For solicitations conducted at the installation level, the 
installation commander shall review proposals to establish banking 
offices, select the banking institution making the best offer and 
forward a recommendation to the Secretary of the Military Department 
concerned (or designee) for final approval.
    (3) Banking institutions shall not be coerced when banking 
arrangements are under consideration or after banking offices are 
established. If otherwise proper, this prohibition does not preclude:
    (i) Discussions with banking institutions prior to submitting a 
proposal for a new banking office.
    (ii) Helping banking offices extend their operations in support of 
an installation requirement.
    (iii) Discussions with banking institutions to improve services or 
to create savings for the banking institution or DoD personnel.
    (iv) Seeking proposals for banking service as directed by the 
Secretary of

[[Page 470]]

the Military Department concerned (or designee).
    (v) Negotiations preparatory to signing a banking agreement.
    (4) When soliciting for banking services, proposals shall be 
evaluated on specific factors identified in the solicitation. These 
factors, at a minimum, shall be predicated on the services to be 
provided as outlined in appendix A, paragraph 3, of this part, the 
financial institution's schedule of service fees and charges, and the 
extent of logistical support required. Prior to issuance of the 
solicitation, the preparing office shall identify (for internal use 
during the subsequent evaluation period) the weights to be applied to 
the factors reflected in the solicitation. Proposals shall be evaluated 
and ultimate selection made based upon the factors and weights developed 
for the solicitation.
    (5) The Secretary of the Military Department concerned (or 
designee), or the installation commander with advice from the cognizant 
Secretary of the Military Department (or designee), shall make the 
selection of the banking institution based on the provisions outlined in 
this section.
    (d) Terminations. (1) Requests for termination of financial services 
shall be approved by the installation commander, substantiated by 
sufficient evidence and forwarded to the Secretary of the Military 
Department concerned (or designee). The termination of banking office 
operations shall be initiated by the installation commander only under 
one of the following conditions:
    (i) The mission of the installation has changed, or is scheduled to 
be changed, thereby eliminating or substantially reducing the 
requirement for financial services.
    (ii) Active military operations prevent continuation of on-base 
financial services.
    (iii) Performance of the banking office in providing services is not 
satisfactory according to standards ordinarily associated with the 
financial services industry or is inconsistent with the operating 
agreements or the procedures prescribed herein.
    (iv) When merger, acquisition, change of control or other action 
results in violation of the terms and conditions of the existing 
operating agreement, the Secretary of the Military Department (or 
designee) shall terminate the operating agreement with the existing 
banking institution. When the merger, acquisition, change of control or 
other action does not result in violation of the terms and conditions of 
the existing operating agreement, the Secretary of the Military 
Department (or designee) shall initiate a novation action of the 
operating agreement identifying the change in control.
    (2) The installation commander shall forward requests for 
termination to the Secretary of the Military Department concerned (or 
designee). The Secretary of the Military Department (or designee) shall 
coordinate all termination actions with the USD(C), through the 
Director, DFAS, before notification to the appropriate regulatory 
agency. Subsequent to this coordination process:
    (i) The Secretary of the Military Department (or designee) shall 
inform the regulatory agency of the action.
    (ii) The installation commander shall revoke the authority of the 
financial institution to operate. The lease will be terminated.
    (3) Any banking office that intends to terminate its operations 
should notify the installation commander at least 180 days before the 
closing date. This notification should precede any public announcement 
of the planned closure. When appropriate, the commander shall attempt to 
negotiate an agreement permitting the banking office to continue 
operations until the installation has made other arrangements. 
Immediately upon notification of a closing, the commander shall advise 
the DoD Component headquarters concerned. If it is determined that 
continuation of banking services is justified, action to establish 
another banking office shall be taken in accordance with the guidance 
prescribed herein.
    (e) Use of space, logistical support, and military real property for 
domestic banks.--(1) Lease Terms. (i) The consideration for a lease 
shall be determined by appraisal of fair market rental value in 
accordance with 10 U.S.C. 2667. Periodic reappraisals shall be based

[[Page 471]]

upon the fair market rental value exclusive of the improvements made by 
the banks.
    (ii) The term of the lease shall not exceed 5 years except where the 
banking institution uses its own funds to improve existing government 
space as outlined in paragraph (e)(5) of this section. If space occupied 
is assigned by the GSA, charges to financial institutions for space and 
services shall be at the GSA standard level user rate.
    (iii) Leases shall include the following provisions:
    (A) The government has the right to terminate the lease due to 
national emergency; installation inactivation, closing, or other 
disposal action; or default by the lessee.
    (B) The lessee shall provide written notice 180 days prior to 
voluntarily terminating the lease.
    (C) Upon a lease termination, the government has the option to cause 
the title of all structures and other improvements to be conveyed to the 
United States without reimbursement, or require the lessee to remove the 
improvements and restore the land to its original condition.
    (2) Logistical support. (i) The banking office shall be housed in a 
building accessible to DoD personnel on the installation and in a 
location permitting reasonable security.
    (ii) Banking institutions shall perform all maintenance, repair, 
improvements, alterations, and construction on the banking premises.
    (iii) Banking institutions shall pay for all utilities (i.e., 
electricity, natural gas or fuel oil, water and sewage), heating and air 
conditioning, intrastation telephone service, and custodial and 
janitorial services to include garbage disposal and outdoor maintenance 
(such as grass cutting and snow removal) at rates set forth in the 
lease, operating agreement or other written agreement between the 
installation and the banking institution.
    (3) Leases executed before the issuance of this part may not be 
altered solely as a result of the provisions of this part unless a 
lessee specifically requests a renegotiation under these provisions. No 
lease may be negotiated or renegotiated, nor may any rights be waived or 
surrendered without compensation to the government.
    (4) When a banking institution participates in the construction of a 
shopping mall complex the lease shall cover only land where the banking 
office physically is located.
    (5) When a banking institution uses its own funds to improve 
existing government space, leases, for a period not to exceed 25 years 
subject to periodic review every 5 years to assess changes in fair 
market value, may be negotiated for a period commensurate with the 
appraised value of the leasehold improvements divided by the annual 
lease fee.
    (f) Land leases. (1) A lease for construction of a building to house 
a banking office shall be at the appraised fair market rental value. 
Charges shall apply for the term of the lease not to exceed 25 years, 
subject to periodic review every 5 years to assess changes in fair 
market value.
    (2) If determined to be in the government's interest, an existing 
lease of land may be extended prior to expiration of its term. Passage 
of title to facilities shall be deferred until all extensions have 
expired. Such extensions shall be for periods not to exceed 5 years with 
lease payments set at the appraised fair market rental of the land only 
as determined on the date of each such extension. Banking institution 
lessees shall continue to maintain the premises and pay for utilities 
and services furnished.
    (3) When, under the terms of a lease, title to improvements passes 
to the government, arrangements normally will be made as follows:
    (i) When the square footage involved exceeds that authorized in DoD 
4270.1-M \9\, the banking institution shall be given first choice to 
continue occupying the excess space under a lease that provides for fair 
market rental for the land underlying that excess space.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (ii) The charge for continued occupancy of improved space by a 
banking office shall be at fair market rental value only for the 
associated land. The lessee shall continue to maintain the premises and 
pay the cost of utilities and services furnished.

[[Page 472]]

    (g) Construction. Banks may construct buildings subject to the 
following provisions:
    (1) The building shall be solely for the use of the banking 
institution and may not provide for other commercial enterprises or 
government instrumentalities.
    (2) Construction projects must meet the criteria in DoD 4270.1-M.
    (3) Construction projects approval authority. (i) Projects costing 
$25,000 or more shall be approved by the Major Command with an 
information copy sent to the Secretary of the Military Department 
concerned (or designee). The Secretary of the Military Department (or 
designee) shall have 30 days to provide comments to the Major Command 
before final approval can be granted.
    (ii) Projects costing less than $25,000, to include interior 
alterations and room or office additions to existing banking offices, 
shall be approved by installation commanders. Copies of approvals, 
including the identification of project cost, shall be furnished to the 
Secretary of the Military Department concerned (or designee).
    (4) The Congress shall be notified of all construction projects, 
using other than appropriated funds and costing over $500,000, in 
accordance with DoD Instruction 7700.18 \10\.
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (5) Proposals for construction of structures on installations at a 
banking institution's expense shall be reviewed and reported in 
accordance with regulations of the Military Department concerned. The 
following information shall be listed to support each proposal:
    (i) Number of DoD personnel at the installation plus others who may 
use the banking office.
    (ii) Square footage of the proposed building.
    (iii) Land area to be leased to the banking institution.
    (iv) Term of the lease.
    (v) Estimated cost of construction.
    (vi) Estimated fair market value of the land to be leased.
    (vii) Statement that the banking institution will be responsible for 
utility connections and other utility and maintenance costs.
    (viii) Statement that the building will be used only for financial 
services.
    (ix) A statement that financial institution officials understand the 
potential loss of the building in the event of installation closure or 
other delimiting condition.
    (x) Justification for a waiver of space criteria if the building 
exceeds that specified in DoD 4270.1-M.
    (6) Banks shall pay for interior alterations and maintenance as well 
as utilities, custodial, and other furnished services.
    (7) Banks shall pay all construction costs.
    (h) Bank liaison officer (BLO). Each installation commander having 
an on-base banking office shall appoint a BLO. The BLO's name and duty 
telephone number shall be displayed prominently at each banking office 
on the installation. As appropriate, the BLO's responsibility shall be 
assigned to comptroller or resource management personnel. Employees, 
officials or directors of a financial institution may not serve as BLOs. 
The BLO shall:
    (1) Ensure that the banking institution operating the banking office 
has the latest version of this part.
    (2) Ensure that traveler's checks and money orders are not being 
sold by other on-base organizations when banking offices are open for 
business. Postal units and credit unions, however, are exempt from this 
restriction. Also, ensure that other financial services, to include 
vehicle financing on domestic installations, are offered only by the 
banking office.
    (3) Attend financial workshops, conferences, and seminars as 
appropriate. These gatherings offer excellent opportunities for 
personnel of financial institutions and the Department to improve the 
military banking program. Free discussion among the attendees gives an 
excellent forum for planning, developing, and reviewing programs that 
improve financial services made available to DoD personnel and 
organizations.

[[Page 473]]

    (4) Assist, when requested by the banking office manager or the 
installation commander, in locating and collecting from individuals 
tendering uncollectable checks, overdrawing accounts, or defaulting on 
loans (within the guidelines of subpart C) if not otherwise prohibited 
by law.
    (5) Maintain regular contact with the banking office manager to 
confer and discuss quantitative and qualitative improvements in the 
services provided. In executing this authority, the BLO shall not become 
involved in the internal operations of the financial institution.
    (6) Review the schedule of service charges and fees annually, and 
ensure that the operating agreement is updated at least every 5 years. 
Renegotiate the financial services offered and related service charges 
and fees as necessary.
    (7) Assist in resolving customer complaints about banking services.
    (8) Assist in resolving complaints of discrimination with financial 
services by the banking institution. If a complaint cannot be resolved, 
a written request for investigation shall be forwarded to the 
appropriate regulatory agency. Any such request must document the 
problem and command efforts taken toward its resolution. Information 
copies of all related correspondence shall be sent through channels to 
the Secretary of the Military Department concerned (or designee) for 
transmittal to the DFAS.
    (9) Assist the installation commander to report to the appropriate 
regulatory agency any evidence suggesting malpractice by banking office 
personnel.
    (i) In-store banking. Under the direction and approval of the 
installation commander, an on-base financial institution may provide in-
store banking within the premises of a commissary operated by the 
Defense Commissary Agency, a Military Exchange, or any other on-base 
retail facility.
    (1) Provision of the requested services, and any associated 
stipulations, shall be documented as an amendment to the existing 
operating agreement between the installation commander and the on-base 
financial institution that will provide in-store services.
    (2) The amendment to the operating agreement shall be drafted 
through close coordination between the requesting DoD Component 
representative, the on-base financial institution representative, the 
bank liaison officer, and the installation commander (or designee). The 
final amendment shall be signed by the installation commander and the 
on-base financial institution with the acknowledgement of the DoD 
Component that will host the in-store banking operation.
    (3) The installation commander shall extend the opportunity to 
provide the requested in-store banking services to all financial 
institutions located on the installation. The selection process is 
outlined in Appendix B of this part.
    (4) Space shall be granted by the installation commander through a 
lease to the banking institution that will provide in-store service.
    (j) Domestic military banking facilities (MBFs).--(1) Domestic MBF 
establishment. (i) Requests to establish MBFs shall be made only when a 
need for services cannot be met by other means. During mobilization, 
however, MBFs may be designated as an emergency measure.
    (ii) Installation commanders shall send requests for an MBF with 
justification for its establishment through the Secretary of the 
Military Department concerned (or designee) to the Director, DFAS, for 
coordination with the Department of the Treasury. The Department of the 
Treasury may approve the designation of an MBF under provisions of 12 
U.S.C. 265.
    (iii) MBF operations may begin only after approval for MBF status is 
granted by the Department of the Treasury.
    (2) MBF conversion. (i) Where MBFs exist, installation commanders 
shall encourage their conversion to independent or branch banks.
    (ii) Proposals from the on-base banking institution to convert an 
existing MBF to an independent or branch bank shall be sent through 
command channels to the Secretary of the Military Department concerned 
(or designee) for approval. The Secretary of the Military Department (or 
designee) shall forward the request to the Director, DFAS, for 
coordination with the Department of the Treasury.

[[Page 474]]

    (iii) Unsolicited proposals from banking institutions to establish 
independent or branch banks where an MBF exists shall be forwarded 
through command channels to the Secretary of the Military Department 
concerned (or designee). Each proposal shall be evaluated on its own 
merits.
    (A) The installation commander shall inform the banking institution 
operating the MBF that an unsolicited proposal for a banking office has 
been received and shall offer that incumbent institution the opportunity 
to submit its own proposal.
    (B) Preference to operate an independent or branch bank shall be 
given to the banking institution that has operated the MBF, provided 
that the banking service previously rendered has been satisfactory and 
that the institution's proposal is adequate.
    (3) MBF termination. The Director, DFAS, shall coordinate the 
termination of a financial institution's authority to operate an MBF 
with the Department of the Treasury.

[66 FR 46708, Sept. 7, 2001; 66 FR 54136, Oct. 26, 2001]



Sec. 231.6  Procedures--overseas banks.

    (a) General provisions of banking services overseas. The Department 
acquires banking services overseas for use by authorized persons and 
organizations from the following sources:
    (1) MBFs operated under contract and authorized by the pertinent 
status of forces agreement, other intergovernmental agreements, or host-
country law.
    (2) Domestic and foreign banking institutions located on overseas 
DoD installations. Each such institution shall be:
    (i) Chartered to provide financial services in that country.
    (ii) A party to a formal operating agreement with the installation 
commander to provide such services.
    (iii) Identified, where applicable, in the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (b) Establishment.--(1) Overseas MBFs Operated Under Contract. 
Installation or community commanders requiring banking services will 
send a request through command channels to the Secretary of the Military 
Department concerned (or designee) for concurrence and subsequent 
transmittal to the Director, DFAS, for approval.
    (i) Requests to establish MBFs shall include, but are not limited 
to, the following information:
    (A) The approximate number of DoD personnel at the installation and 
in the community and any other persons who may be authorized to use the 
MBF.
    (B) The distance between the installation and the nearest MBF and 
credit union office, the names; addresses, and telephone numbers of the 
operators of those institutions; and the installations and communities 
where they are located.
    (C) The availability of official and public transportation between 
the installation or community and the nearest MBF and credit union 
office.
    (D) The name and location of the depository used to make official 
deposits for credit to the TGA.
    (E) A list of organizational and nonappropriated fund accounts, the 
name and location of the financial institutions where deposited, and the 
average daily activity and balance of each account.
    (F) A written description and photographs or drawings of the space 
proposed for MBF use. The extent and approximate cost of required 
alterations, including the construction of counters and teller cages.
    (G) A statement that recognizes the logistical support, including 
equipment, to be provided by the local command as detailed in paragraph 
(c) of this section. The statement will include the costs of such 
equipment and the manner in which it will be acquired.
    (H) In countries where no MBFs currently are operated under 
contract, a statement from the cognizant Combatant Command that the 
requirement has been coordinated with the U.S. Chief of Diplomatic 
Mission or U.S. Embassy and that the host country will permit the 
operation in accordance with paragraph (c)(1)(i) of this section.
    (I) Any other pertinent information to justify the establishment of 
an MBF.

[[Page 475]]

    (ii) As a general rule, MBFs may be established only when the 
installation or community population meets the following criteria:
    (A) Full-time MBF. Except in unusual circumstances, a total of at 
least 1,000 permanent military personnel and DoD civilian employees are 
necessary to qualify for a full-time MBF.
    (B) Part-time MBF. Except in unusual circumstances, a total of at 
least 250 permanent military personnel and DoD civilian employees are 
necessary to qualify for a part time MBF.
    (iii) If the population at a certain remote area is not sufficient 
to qualify under the criteria for full-time or part-time MBFs, the 
installation or community commander will explore all other alternatives 
for acquiring limited banking services before requesting establishment 
of an MBF as an exception to these provisions. Alternatives to limited 
banking services include installation of ATMs and check cashing and 
accommodation exchange service by disbursing officers and their agents.
    (iv) Establishment of an overseas MBF is predicated on and requires:
    (A) Designation of the MBF contractor as a depositary and financial 
agent of the U.S. Government by the Department of the Treasury.
    (B) The availability of banking contractors interested in bidding 
for the operation of the facility and the viability of such proposals.
    (C) The availability of appropriated funds to underwrite such 
banking services.
    (D) Establishment of a U.S. dollar currency custody account to 
support banking operations.
    (2) Other overseas banking offices. Where a need for financial 
services has been identified and either the banking and currency control 
laws of certain host countries do not permit MBFs to operate on DoD 
installations or MBFs, where permitted, have not been established, then 
the following applies:
    (i) Installation or community commanders shall send requests for 
banking services or unsolicited proposals from foreign banking 
institutions to their Major Commands with supporting data as required in 
Sec. 231.5(b)(1).
    (ii) Major Commands shall forward installation or community 
commander requests to the Secretary of the Military Department concerned 
(or designee) for approval. The Secretary of the Military Department 
concerned (or designee) shall coordinate with the DFAS to seek the 
designation of the parent foreign banking institution as a depositary 
and financial agent of the U.S. Government by the Department of the 
Treasury.
    (iii) Banking offices in this category cannot become operational 
until the foreign parent banking institution has been designated a 
depositary and financial agent of the U.S. Government. The institution 
also shall indicate a willingness and ability to provide collateral 
backing for any official and nonappropriated fund U.S. dollar deposits. 
Any collateral pledged shall be in a form acceptable to the DFAS and the 
Department of the Treasury.
    (c) Logistical support.-- (1) Overseas MBFs operated under contract. 
(i) Given that appropriated funds support those MBFs that are operated 
under contract, installation or community commanders shall provide the 
MBFs logistical support to the maximum possible extent. Such support 
normally includes:
    (A) Adequate office space, including steel bars; grillwork; security 
doors; a vault, safes, or both; security alarm systems and camera 
surveillance equipment (where deemed necessary) that meet documented 
requirements of the MBF contractor's insurance carrier; construction of 
counters, teller cages, and customer and work areas; necessary 
modifications and alterations to existing buildings; and construction of 
new MBF premises, if necessary.
    (1) The size and arrangement of space should permit efficient 
operations. Space assigned may not exceed that prescribed in DoD 4270.1-
M.
    (2) All maintenance, repair, rehabilitation, alterations, or 
construction for banking offices shall comply with guidelines 
established by the installation commander.
    (B) Office space in a building that is accessible to most users and 
permits

[[Page 476]]

the maximum security. In addition, office space for MBF area and 
district administrations and storage space for retention of records, 
files, and storage of supplies.
    (C) DoD housing on a rental basis to assigned MBF staff that are 
designated as key and essential MBF managerial personnel who are unable 
to find suitable, reasonably priced housing in the vicinity of the DoD 
installation, subject to the assignment procedures and other 
requirements of DoD 4165.63-M.\11\
---------------------------------------------------------------------------

    \11\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (D) Education, on a space-available, tuition-paying basis, provided 
by the Department of Defense Education Activity to minor dependents of 
assigned staff in accordance with DoD Directive 1342.13.\12\
---------------------------------------------------------------------------

    \12\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (E) Air conditioning, which is considered a normal utility for 
banking offices located at installations that qualify for air 
conditioning under applicable regulations. Banking space is classified 
as administrative space at military installations.
    (F) Utilities (i.e., electricity, natural gas or fuel oil, water and 
sewage), heating, intrastation telephone service, and custodial and 
janitorial services to include garbage disposal and outdoor maintenance 
(such as grass cutting and snow removal).
    (G) Defense Switched Network (DSN) voice and data communication to 
include, where feasible, Internet access.
    (H) Military guards, civilian guards (for use within the 
installation), military police, or other protective services to 
accompany shipments of money. This level of protective service also 
shall be provided at other times as required to include replenishment of 
ATM currency and receipts, alarm system failures, and to avoid undue 
risks or insurance costs on the part of the MBF.
    (I) U.S. Military Postal Service access in accordance with DoD 
Directive 4525.6.\13\ Use of free intra-theater delivery system (IDS) is 
authorized for all routine mail sent and received between Army Post 
Offices (APOs) and Fleet Post Offices (FPOs) within a theater.
---------------------------------------------------------------------------

    \13\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (J) Office equipment and furniture on memorandum receipt if 
available from local stock. If office equipment or furniture is 
unavailable, statements of nonavailability shall be issued.
    (K) Vehicle registration and fuel sales from government-owned 
facilities for bank-operated vehicles, if not in conflict with host 
government agreements. Vehicle registration shall be subject to normal 
fees.
    (L) Issuance by local commanders of invitational travel orders, at 
no expense to the U.S. Government when required for official onsite 
visits by U.S. based banking institution officials.
    (ii) Suggestions for changes to the logistical support provisions of 
the MBF contract may be forwarded for consideration through command 
channels to the Director, DFAS.
    (2) Other overseas banking offices. (i) Logistical support provided 
to such offices will be negotiated with the parent foreign banking 
institution and incorporated into the written operating agreement.
    (ii) Logistical support shall not exceed that provided to contract 
MBFs, as specified in paragraph (c)(1) of this section.
    (d) Operations.--(1) General conditions of MBF operation. (i) Before 
initiating MBF operations, a written agreement shall be negotiated 
directly and signed by the installation or community commander and a 
senior official of the banking contractor or other financial institution 
concerned. One copy of the agreement with U.S. banking contractors and 
two copies of the agreement with institutions other than U.S. banking 
contractors shall be forwarded through command channels to the Secretary 
of the Military Department concerned (or designee). The Secretary of the 
Military Department (or designee) shall forward one copy of the 
agreement with institutions other than U.S. banking contractors through 
command channels to the Director, DFAS. A copy of the agreement also 
shall be maintained at all times by the installation or community 
commander and the banking institution manager.
    (ii) For MBFs operated by U.S. banking contractors, the agreement 
shall state operating details not set forth in

[[Page 477]]

the contract. Though the contract limits the number of operating hours 
per week, local commanders and MBF managers should set days and hours of 
operation to best meet local needs. Operating times may include 
Saturdays and evening hours when necessary to complement other retail 
services for DoD personnel, provided the contractor can implement that 
service at no additional cost to the government. When added cost is 
involved, the commander shall send a request including reasons for 
expanded or modified times of operation, through command channels, to 
the Secretary of the Military Department concerned (or designee) for 
action. If approved, the request, with recommendations, shall be 
forwarded to the Director, DFAS (or designee).
    (2) Overseas MBFs operated under contract.--(i) General. Overseas 
MBFs shall operate under terms and conditions established at the time of 
contract negotiations and confirmed in respective contracts or 
contracting officer determinations.
    (ii) Authorized customers. DoD banking contracts specify the 
personnel authorized to receive service. Additionally, overseas major 
commanders may approve banking services for other individuals that 
qualify for individual logistic support under the regulations of the DoD 
Component concerned, provided that the use of banking services is not 
precluded by status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (iii) Services rendered. DoD banking contracts specify the services 
to be rendered and related charges. Suggestions for expansion or 
modification of authorized services, fees or charges may be forwarded 
through DoD Component channels to the Director, DFAS. Proposals for any 
new service must be coordinated with the appropriate Combatant Command 
and U.S. Chief of Diplomatic Mission or U.S. Embassy to make certain 
that the proposal does not conflict with the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (iv) Regulation to be provided. The Director, DFAS (or designee) 
shall advise each U.S. banking contractor operating an overseas MBF of 
this Regulation and furnish a copy to the contractor.
    (v) Conditions of operation. (A) Part-time and payday service MBFs 
shall provide limited services that mirror, to the extent feasible, 
those provided by full-time MBFs. Since part-time MBFs operate out of 
nearby MBFs, installation or community commanders shall provide and fund 
transportation and guards for their operation.
    (B) Any deficiency of banking services under DoD banking contracts 
shall be reported to the manager of the MBF within 7 calendar days of 
noting the deficiency. If the problem has not been corrected within 30 
calendar days after being noted, the commander shall report the problem 
through DoD Component channels to the Director, DFAS (or designee).
    (C) The MBF contractor and military disbursing officers shall 
establish cash management practices that minimize the cash required 
conducting business.
    (D) Commanders shall assist MBF contractors to develop and update 
contingency plans for banking services in the event of hostilities or 
other emergencies.
    (E) MBF provision of foreign currency shall be in accordance with 
Volume 5, Chapter 13 of The DoD Financial Management Regulation (DoD 
7000.14-R).
    (3) Other overseas banking offices.--
    (i) Authorized customers. The list of authorized customers shall be 
negotiated between the installation commander and the foreign banking 
institution and shall be reflected in the operating agreement. The list 
of authorized customers included in the operating agreement shall be 
consistent with the applicable status of forces agreement, other 
intergovernmental agreements, or host-country law.
    (ii) Services rendered. Services and charges shall parallel, 
whenever practical, the services and charges of MBFs operated under 
contract. Specific services shall be negotiated and included in the 
agreement with the foreign banking institution. A copy of the agreement 
shall be sent through DoD Component channels to the Director, DFAS (or 
designee).
    (iii) Operating agreements. Before agreements are executed, they 
will be coordinated with and approved by the

[[Page 478]]

cognizant Combatant Command (or designee).
    (iv) Conditions of operation. A foreign banking institution shall 
provide equipment (except that furnished by the installation or 
community), supplies, and trained personnel.
    (4) Relocation of MBF. (i) When an MBF is moved from one location to 
another at the same installation or community, the commander shall 
notify the cognizant Military Department, through command channels. The 
Military Department shall forward the information to the Director, DFAS 
(or designee).
    (ii) For all other relocations, prior approval from the Director, 
DFAS (or designee) shall be obtained through DoD Component channels.
    (5) Comments. Installation or community commanders shall send their 
banking comments through DoD Component channels to the Director, DFAS 
(or designee) for any of the following:
    (i) Major changes in installation population that would affect use 
of the MBF.
    (ii) Opinion that the space assigned is not adequate for the 
efficient operation of the MBF including a statement concerning 
corrective action.
    (iii) Suggestions that might improve the MBF operation, increase 
efficiency, or decrease costs.
    (iv) Pending developments that may have a material impact on the MBF 
operation.
    (6) Bank liaison officer. The duties of the BLO are outlined in 
Sec. 231.5(h).
    (e) Termination. Requests to eliminate any or all MBFs in a foreign 
country shall include documentation that the U.S. Chief of Diplomatic 
Mission has been informed and that arrangement for local termination 
announcements and procedures have been made with the U.S. Embassy.
    (1) Overseas MBFs operated under contract. In cases where an 
installation or community no longer can justify overseas MBF operations, 
the commander shall notify the Secretary of the Military Department 
concerned (or designee) through command channels.
    (i) The report shall state whether a part-time MBF should be 
established and specify the days each week that the MBF would be needed.
    (ii) The Secretary of the Military Department (or designee) shall 
send this report with recommendations to the Director, DFAS (or 
designee).
    (2) Other overseas banking offices. Termination actions, when 
required, shall be taken in accordance with the applicable clauses in 
the operating agreement. Notice of intent to terminate, including the 
closing date, shall be sent through DoD Component channels to Director, 
DFAS (or designee), who shall notify the Department of the Treasury so 
that the foreign banking institution's authority as a Depositary and 
Financial Agent of the U.S. Government at that location may be revoked.



Sec. 231.7  Procedures--domestic credit unions.

    (a) General policy. Given their role in promoting morale and 
welfare, on-base credit unions shall be recognized and assisted by DoD 
Components at all levels. These financial institutions shall provide 
services to DoD personnel of all ranks and grades within their 
respective fields of membership.
    (b) Establishment. A demonstrated need for credit union services may 
be addressed by establishing a new full-service credit union or by 
opening a branch office or facility of an existing credit union under 
the common bond principle.
    (1) DoD personnel seeking to establish a new full-service credit 
union shall submit a proposal to the installation commander for review. 
In addition to the information identified in Sec. 231.5(b)(1), the 
proposal shall include a request for the establishment of a field of 
membership that includes all personnel at the installation. Upon 
installation commander concurrence, the proposal shall be forwarded 
through DoD Component channels to the Secretary of the Military 
Department (or designee).
    (2) The Secretary of the Military Department concerned (or designee) 
shall:
    (i) Obtain a list of credit unions that could establish eligibility 
to serve the installation's military members and civilian employees from 
the National Credit Union Administration (NCUA)

[[Page 479]]

Regional Office that has geographic jurisdiction and the applicable 
state regulatory agency.
    (ii) Prepare and send formal solicitation letters to eligible credit 
unions informing them of an opportunity to establish a branch office at 
the installation.
    (iii) In coordination with the installation commander, establish the 
criteria for selection of a specific credit union in accordance with 
Sec. 231.5(c)(4). Proposals shall be evaluated, and a selection made, 
based upon the factors and weights developed for the solicitation.
    (3) Upon approval by the Secretary of the Military Department (or 
designee), the NCUA or applicable state regulatory agency shall be 
notified and asked to establish or amend the selected credit union's 
charter to include the new location.
    (4) No commitment may be made to a credit union regarding its 
proposal until the appropriate regulatory agency has approved the 
requested charter change.
    (c) Terminations.--(1) Voluntary credit union terminations. (i) When 
a credit union plans to end operations on a DoD installation, it shall 
be required to notify the installation commander 180 days before the 
closing date. Such notification shall be required to precede public 
announcement of the planned closure. When appropriate, the commander 
shall attempt to negotiate an agreement permitting the credit union to 
continue operations until the installation has made other arrangements.
    (ii) The installation commander shall inform the Secretary of the 
Military Department concerned (or designee) immediately upon receiving 
notification of a closing. The report shall include a recommendation 
about continued credit union service on the installation. Paragraph (b) 
of this section applies if continued service is needed.
    (2) Termination for cause. If, after discussion with credit union 
officials, an installation commander determines that the operating 
policies of a credit union are inconsistent with this Regulation, a 
recommendation for termination of logistical support and space 
arrangements may be made through the Secretary of the Military 
Department concerned (or designee). A credit union shall be removed from 
the installation only with approval of the Secretary of the Military 
Department (or designee) after coordination with the USD(C) through the 
Director, DFAS, and the appropriate regulatory agency.
    (3) Termination in the interest of national defense. At the option 
of the government, leases may be terminated in the event of national 
emergency or as a result of installation deactivation, closing, or other 
disposal action.
    (4) Termination resulting from merger, acquisition, or change of 
control. When merger, acquisition, change of control or other action 
results in violation of the terms and conditions of the existing 
operating agreement, the Secretary of the Military Department (or 
designee) shall, subsequent to coordination with the USD(C), through the 
Director, DFAS, terminate the operating agreement with the existing 
credit union. When the merger, acquisition, change of control or other 
action does not result in violation of the terms and conditions of the 
existing operating agreement, the Secretary of the Military Department 
(or designee) shall initiate a novation action of the operating 
agreement identifying the change in control.
    (5) Termination of lease. The lessee shall provide written notice 
180 days prior to a voluntary termination of the lease. Upon lease 
termination, the government has the option to cause the title of all 
structures and other improvements to be conveyed to the United States 
without reimbursement, or require the lessee to remove the improvements 
and restore the land to its original condition.
    (d) Use of space, logistical support, and military real property for 
domestic credit unions.--(1) Criteria for use of space in Government-
owned real property. (i) Criteria governing the assignment of space and 
construction of new space for credit unions are in DoD 4270.1-M.
    (ii) A credit union may be furnished space on a DoD installation at 
one or more locations for periods not exceeding 5 years except where the 
credit union uses its own funds to improve existing government space as 
outlined in paragraphs (d)(1)(ii)(C) and (d)(1)(ii)(D) of this section. 
The cumulative total of

[[Page 480]]

space furnished shall be subject to the limitations of DoD 4270.1-M.
    (A) The furnishing of office space (including ATM placement) to on-
base credit unions is governed by section 170 of the Federal Credit 
Union Act (12 U.S.C. 1770). The provision of no-cost office space for a 
period not to exceed 5 years is limited to credit unions if at least 95 
percent of the membership to be served by the allotment of space is 
composed of individuals who are, or who were at the time of admission 
into the credit union, military personnel or federal employees, or 
members of their families. A written statement to the effect that the 
credit union meets the 95 percent criterion shall be required to justify 
and document the allotment of free government space. This statement 
shall be prepared on the credit union's letterhead and signed either by 
the chairman of the board of directors or the president. A certification 
also shall be required whenever there is a merger, takeover, or 
significant change in a field of membership. This certification shall 
serve as justification and documentation for the continued allocation of 
free government space including space renovated with credit union funds. 
The statement shall be updated every 5 years and on renewal of each no-
cost permit or license. (See appendix C of this part for a sample format 
of the statement.)
    (B) Credit unions that fail to meet the 95 percent criterion shall 
be charged fair market rental for space provided. Except where more than 
one credit union exists on an installation prior to June 9, 2000, credit 
unions giving less than full service or not serving all assigned DoD 
personnel are not authorized no-cost office space.
    (C) When a credit union that meets the 95 percent criterion uses its 
own funds to expand, modify, or renovate government-owned space, it may 
be provided a no-cost permit or license for a period commensurate with 
the extent of the improvements not to exceed 25 years as determined by 
the DoD Component concerned. The permit or license shall be effective 
until the agreed date of expiration or until the credit union ceases to 
satisfy the 95 percent criterion. In this latter case, the no-cost 
permit shall be cancelled in favor of a lease immediately negotiated at 
fair market value under the provisions of paragraph (d)(1)(ii)(B) of 
this section. If the credit union desires, this permit or license may 
extend through the period identified in the original permit or license 
not to exceed 25 years.
    (D) Similarly, a credit union not meeting the 95 percent criterion 
that uses its own funds to expand, modify, or renovate government-owned 
space, may be provided a lease at fair market value for a period not to 
exceed 25 years subject to periodic review every 5 years to assess 
changes in fair market value. Duration of this lease shall be 
commensurate with the extent of the improvements as determined by the 
DoD Component concerned.
    (iii) All space assigned by the GSA, whether leased or in a federal 
office building, is reimbursable to the GSA at the standard level user 
charge. Consequently, the GSA shall charge the benefiting DoD Component 
for any space assigned for credit union operations. Such space is 
subject to the provisions of paragraph (d)(1)(i) and (ii) of this 
section.
    (2) Logistical support. When available, custodial and janitorial 
services to include garbage disposal and outdoor maintenance (such as 
grass cutting and snow removal), heating and air conditioning, utilities 
(i.e., electricity, natural gas or fuel oil, water, and sewage), 
fixtures, and maintenance shall be furnished without cost to credit 
unions occupying no-cost office space in government buildings. With the 
exception of intrastation telephone service, credit unions shall be 
required to pay for all communication services to include telephone 
lines, long distance data services and Internet connections. Credit 
unions also shall pay for space alterations. Should a credit union fail 
to meet the 95 percent membership criterion, any logistical support 
furnished shall be on a reimbursable basis.
    (3) Leases executed before the issuance of this part may not be 
altered solely as a result of the provisions of this part unless a 
lessee specifically requests a renegotiation under these provisions. No 
lease may be negotiated or renegotiated, nor may any

[[Page 481]]

rights be waived or surrendered without compensation to the government.
    (4) When a credit union participates in the construction of a 
shopping mall complex the lease shall cover only land where the branch 
or facility physically is located.
    (5) Administrative fees. All administrative fees associated with the 
initiation, modification, or renewal of an outgrant shall be borne by 
the installation, provided that the credit union satisfies the 95 
percent membership criterion requirement for no-cost office space as 
outlined paragraph (d)(1)(ii)(A) of this section, and that the fees are 
associated with the no-cost space.
    (e) Land leases. Credit unions entering into a land lease to 
construct a building on a DoD installation shall do so in accordance 
with Sec. 231.5(f).
    (f) Construction. Credit unions constructing a building on a DoD 
installation shall do so in accordance with Sec. 231.5(g).
    (g) Credit unions offering ATM service shall do so in accordance 
with Sec. 231.4(d).
    (h) Staffing. (1) On-base credit unions shall provide full service. 
To do so, credit union offices shall be staffed by:
    (i) An official authorized to act on loan applications.
    (ii) An individual authorized to sign checks; and
    (iii) A qualified financial counselor available to serve members 
during operating hours.
    (2) Exceptions to paragraph (h)(1)(i) of this section may be 
approved by the installation commander with advice from the Secretary of 
the Military Department concerned (or designee) in the case of newly 
organized credit unions.
    (3) When an on-base credit union can support only minimum staffing, 
one of the positions required in paragraph (h)(1)(i) of this section or 
paragraph (h)(1)(ii) of this section also may be subsumed under the 
counselor duties.
    (4) Credit union remote service locations at the same installation 
may be staffed with one person alone, provided that a direct courier or 
an electronic or automated message service links each remote location to 
the credit union's main office.
    (i) Credit union liaison officer (CULO). When a credit union office 
is located on an installation, the commander shall appoint a CULO. As 
appropriate, the CULO responsibility should be assigned to comptroller 
or resource management personnel. The CULO's name and duty telephone 
number shall be displayed prominently at each credit union office on the 
installation. Anyone who serves as a credit union board member or in any 
other official credit union capacity may not serve as a CULO. The duties 
of a CULO are the same as the duties listed for a BLO (see Sec. 
231.5(h)).
    (j) In-store banking. In-store banking services may be provided in 
accordance with Sec. 231.5(i) except that:
    (1) Credit unions interested in submitting proposals to provide 
requested in-store banking services shall provide a statement from the 
NCUA or applicable state regulatory agency certifying the credit union's 
authority to offer the requested financial services to the commissary, 
Military Exchange, or other on-base facilities.
    (2) Space granted to a credit union selected to provide in-store 
banking services should be issued through a no-cost license in 
accordance with section 170 of the Federal Credit Union Act (12 U.S.C. 
1770).



Sec. 231.8  Procedures--overseas credit unions.

    (a) General policy. (1) Credit union services to authorized persons 
and organizations may be provided by domestic on-base credit unions 
operating under a geographic franchise.
    (2) The extension of credit union service overseas is encouraged 
consistent with the principles prescribed for domestic credit unions and 
with applicable status of forces agreements or other intergovernmental 
agreements, or host-country law.
    (3) Where permitted by the status of forces agreements or other 
intergovernmental agreements, or host-country law, only federal credit 
unions or federally insured state chartered credit unions may operate on 
overseas DoD installations. The ultimate decision to provide services 
overseas rests with the credit union itself.

[[Page 482]]

    (b) Establishment. (1) Commanders shall notify the Secretary of the 
Military Department concerned (or designee), through command channels, 
when overseas credit union services are needed. Such requests shall 
include:
    (i) Full information about available space and logistical support.
    (ii) The name and location of the nearest credit union facility or 
branch.
    (iii) The distance between the installation and the nearest credit 
union facility or branch.
    (iv) The availability of any official or public transportation.
    (v) The number of DoD personnel in duty assignments that confine 
them to the installation or who cannot obtain transportation (such as 
hospital patients).
    (vi) In countries not presently served, a statement concurred in by 
the cognizant Combatant Command that the requirement has been 
coordinated with the U.S. Chief of Diplomatic Mission or U.S. Embassy. 
The statement shall include that the host country will permit credit 
union operations and will indicate any conditions imposed by the host 
country with respect to those operations.
    (2) Subsequent to approval of the request from the installation or 
community commander to establish an overseas credit union facility, the 
Secretary of the Military Department concerned (or designee) shall 
solicit proposals for the provision of full credit union services under 
the following provisions.
    (i) Where there is a DoD designated geographic franchise with a 
specific field of membership, the Secretary of the Military Department 
(or designee) shall direct the installation or community commander to 
contact the supporting credit union and request that a branch or 
facility be established. The basic decision concerning such extensions 
of service rests with the servicing credit union. The Director, DFAS (or 
designee) shall maintain a listing of all geographic franchises assigned 
to credit unions serving DoD overseas installations.
    (ii) Where there is no DoD designated geographic franchise, the 
Secretary of the Military Department (or designee) shall:
    (A) Coordinate requests, through the Director, DFAS (or designee), 
to obtain a geographic franchise. A geographic franchise is the 
authorization granted to a credit union by the Office of the Under 
Secretary of Defense (Comptroller) (OUSD(C)) to provide financial 
services in a specific geographic region located outside the United 
States, its territories and possessions.
    (B) Solicit proposals from credit unions currently operating on DoD 
installations.
    (C) Review proposals of interested credit unions.
    (D) Coordinate with field commands, as needed.
    (E) Recommend selection to the NCUA or applicable state regulatory 
agency with a copy to the DFAS and the OUSD(C), requesting that the 
appropriate field of membership adjustment be made. Such a 
recommendation shall identify the primary installations on which the 
credit union would operate and, if applicable, the contiguous geographic 
boundaries for future facilities and branches.
    (3) Where there is an existing field of membership, the Secretary of 
the Military Department concerned (or designee) shall take the following 
actions:
    (i) If a credit union on an installation terminates operation, 
afford any other credit union having a geographic franchise within that 
country an opportunity to assume the franchise being vacated. If all 
such institutions decline, the geographic franchise shall be offered to 
the federally insured credit union community. If, as a result of a 
credit union decision to decline service to an installation or a 
termination action, another credit union:
    (A) Offers to provide service.
    (B) Meets host country requirements (if any) and
    (C) Is assigned the former geographic franchise or portion thereof, 
the NCUA or the applicable state regulatory agency shall be notified and 
requested to make appropriate field of membership adjustments.
    (ii) When other credit union(s) having a geographic franchise within 
a country decline the opportunity, or there is

[[Page 483]]

no other credit union having a franchise within that country, the 
provisions of paragraph (b)(2)(ii) of this section apply.
    (4) No commitment may be made to a credit union regarding its 
proposal until the appropriate regulatory agency has announced a 
selection.
    (c) Logistical support. Installation or community commanders shall 
provide logistical credit union support. Such support normally shall 
include:
    (1) Adequate office space, including steel bars; grillwork; security 
doors; a vault, safes or both; security alarm systems and camera 
surveillance equipment (where deemed necessary) that meet documented 
requirements of the credit union's insurance carrier; construction of 
counters, teller cages, and customer and work areas; necessary 
modifications and alterations to existing buildings. The size and 
arrangement of space should permit efficient operations. The credit 
union shall pay for all improvements to the space given. Space assigned 
may not exceed that prescribed in DoD 4270.1-M.
    (2) DoD housing on a rental basis to key credit union personnel 
unable to find suitable, reasonably priced housing in the vicinity of 
the DoD installation, if available.
    (3) Education, on a space-available, tuition-paying basis, provided 
by the Department of Defense Education Activity to minor dependents of 
assigned staff in accordance with DoD Directive 1342.13.
    (4) Utilities (i.e., electricity, natural gas or fuel oil, water and 
sewage), heating, intrastation telephone service, and custodial and 
janitorial services.
    (5) DSN voice and data communication to include, where feasible, 
internet access.
    (6) U.S. Military Postal Service support under DoD Directive 4525.6. 
The use of free intra-theater delivery system (IDS) is authorized for 
all routine mail sent and received between Army Post Offices (APOs) and 
Fleet Post Offices (FPOs) within a theater.
    (7) Military guards, civilian guards (for use within the 
installation), military police, or other protective services to 
accompany shipments of money from the MBF to the credit union and return 
where it is impractical or not authorized to have a local armored car 
service or civilian police authorities entering a military installation 
to provide cash escort service or when the cost of obtaining such 
service is prohibitive. This level of protective service also shall be 
provided at other times as required to include replenishment of ATM 
currency and receipts, alarm system failures, and to avoid undue risks 
or insurance costs.
    (d) Travel. Travel by credit union officials must be at no expense 
to the U.S. Government. Overseas commanders may issue invitational 
travel orders for official on-base visits by credit union officials at 
no cost to the U.S. Government.
    (e) Operations. (1) An overseas credit union shall confine its field 
of membership to individuals or organizations eligible by law or 
regulation to receive services and benefits from the installation. 
Services shall not be provided to those personnel precluded such 
services by the applicable status of forces agreement, other 
intergovernmental agreements, or host-country law.
    (2) The Department assigns overseas credit unions a prescribed 
geographic franchise. Any credit union, however, may continue to serve 
its members stationed overseas by mail or telecommunications, to include 
access to the Internet.
    (3) A credit union proposing a new service to be offered by a branch 
office that is not authorized by the operating agreement shall 
coordinate the establishment of the new service through the cognizant 
Component command to the Combatant Command. The new service shall be 
offered only after the appropriate command's approval and coordination 
with the U.S. Chief of Diplomatic Mission or U.S. Embassy to ensure that 
the service does not conflict with the applicable status of forces 
agreement, other intergovernmental agreements, or host-country law.
    (4) Credit unions that operate full service branches shall have U.S. 
currency and coin available for member transactions. In areas served by 
currency custody accounts, transactional U. S. currency and coins shall 
be made available from the servicing MBF with no direct or analysis 
charge to the

[[Page 484]]

credit union, provided settlement is made via the local MBF account or 
equivalent arrangements are made with the MBF.
    (5) In countries served by MBFs operated under contract, credit 
unions shall purchase foreign currency only from the servicing MBF.
    (i) The bulk rate purchase price shall apply to currency used by the 
credit union to make payments to vendors or to make payroll payments.
    (ii) Credit unions that desire and are authorized to provide 
accommodation exchange services to its members shall acquire foreign 
currency from the servicing MBF at the MBF wholesale rate and sell it at 
a rate of exchange no more favorable than that available to customers of 
the MBF.
    (6) Credit unions operating under a geographic franchise on an 
overseas DoD installation shall not publicize, display or sell vehicles 
on the installation.
    (7) The NCUA or applicable state regulatory agency may review 
operations of overseas credit union offices either when it examines the 
main credit union or at other times of its choosing. For federally 
insured, state chartered credit unions, the applicable state regulatory 
agency also may examine credit unions operations.



Sec. 231.9  Definitions.

    (a) Automated Teller Machine (ATM). An electronic machine that 
dispenses cash, and may perform such other functions as funds transfers 
among a customer's various accounts and acceptance of deposits. 
Equipment generally is activated by a plastic card in combination with a 
personal identification number (PIN). Typically, when the cardholder's 
account is with a financial institution other than that operating the 
ATM, its use results in the assessment of a fee from the ATM network 
(e.g., Armed Forces Financial Network (AFFN), Cirrus, or PLUS) that 
processes the transaction.
    (b) Banking institution. An entity chartered by a state or the 
federal government to provide financial services.
    (c) Banking office. A branch bank, or independent bank operated by a 
banking institution on a domestic DoD installation or by a foreign 
banking institution on an overseas DoD installation.
    (d) Branch bank. A separate unit chartered to operate at an on-base 
location geographically remote from its parent banking institution.
    (e) Credit union. A cooperative nonprofit association, incorporated 
under the Federal Credit Union Act (12 U.S.C. 1751 et seq.), or similar 
state statute, for the purposes of encouraging thrift among its members 
and creating a source of credit at a fair and reasonable rate of 
interest.
    (f) Credit union facility. A facility employing a communications 
system with the parent credit union to conduct business at remote 
locations where a full-service credit union or credit union branch is 
impractical. Credit union facilities need not provide cash transaction 
services but must disburse loans and shares by check or draft and 
provide competent financial counseling during normal working hours.
    (g) Discrimination. Any differential treatment in provision of 
services, including loan services, by a financial institution to DoD 
personnel and their dependents on the basis of race, color, religion, 
national origin, sex, marital status, age, rank, or grade.
    (h) DoD Component. For the purposes of this part, DoD Components 
include the Office of the Secretary of Defense, the Military 
Departments, the Joint Chiefs of Staff, the Joint Staff and the 
supporting Joint Agencies, the Combatant Commands, the Inspector General 
of the Department of Defense, the Defense Agencies, the DoD Field 
Activities, the Uniformed Services University of the Health Sciences, 
all nonappropriated fund instrumentalities including the Military 
Exchange Services, and morale, welfare and recreation activities, and 
all other organizational entities within the Department of Defense.
    (i) DoD Personnel. All military personnel; DoD civil service 
employees; other civilian employees, including special government 
employees of all offices, Agencies, and Departments performing functions 
on a DoD installation (including nonappropriated fund 
instrumentalities); and their dependents. On domestic DoD installations,

[[Page 485]]

retired U.S. military personnel and their dependents are included.
    (j) Domestic DoD installation. For the purposes of this Regulation, 
a military installation located within a state of the United States, the 
District of Columbia, Guam or the Commonwealth of Puerto Rico.
    (k) Fair market rental. A reasonable charge for on-base land, 
buildings, or building space. Rental is determined by a government 
appraisal based on comparable properties in the local civilian economy. 
The appraiser, however, shall consider that on-base property may not 
always be comparable to similar property in the local commercial 
geographic area. Examples of circumstances that may affect fair market 
rental include limitations of usage and access to the financial 
institution by persons other than those on the installation, proximity 
to the community center or installation business district, and the 
government's right to terminate the lease or take title to improvements 
constructed at the financial institution's expense.
    (l) Field of membership. A group of people entitled to credit union 
membership because of a common bond of occupation, association, 
employment, or residence within a well-defined neighborhood, community, 
rural district, and other persons sharing a common bond as described by 
credit union board of directors policy or by Interpretation Ruling and 
Policy Statement (IRPS) 99-1. A field of membership is defined in the 
credit union's charter by the appropriate regulatory agency.
    (m) Financial institution. This term encompasses any banking 
institution, credit union, thrift institution and subordinate office 
branch or facility, each as separately defined herein.
    (n) Financial services. Those services commonly associated with 
financial institutions in the United States, such as electronic banking 
(e.g., ATMs and personal computing banking), in-store banking, checking, 
share and savings accounts, funds transfers, sales of official checks, 
money orders, and travelers checks, loan services, safe deposit boxes, 
trust services, sale and redemption of U.S. Savings Bonds, and 
acceptance of utility payments and any other services provided by 
financial institutions.
    (o) Foreign banking institution. A bank located outside the United 
States chartered by the country in which it is domiciled.
    (p) Full service credit union. A credit union that provides full-
time counter transaction services, to include cash operations, and is 
staffed during normal working hours by a loan officer, a person 
authorized to sign checks, and a qualified financial counselor. In 
overseas areas, ``full service'' includes cash operations where not 
prevented by:
    (1) Status of forces agreements, other intergovernmental agreements, 
or host-country law.
    (2) Physical security requirements that cannot be resolved by the 
credit union or local command.
    (q) Geographic franchise. Authorization granted to a credit union by 
the Office of the Under Secretary of Defense (Comptroller) to provide 
financial services in a specific geographic region located outside the 
United States, its territories and possessions.
    (r) Independent bank. A bank specifically chartered to operate on 
one or more DoD installations whose directors and officers usually come 
from the local business and professional community. Such operations are 
thus differentiated from county-wide or state-wide branch systems 
consisting of a head office and one or more geographically separate 
branch offices.
    (s) In-store banking. An expansion of financial services provided by 
an on-base financial institution within the premises of a commissary 
store operated by the Defense Commissary Agency, a Military Exchange 
outlet, and other on-base retail facilities.
    (t) Malpractice. Any unreasonable lack of skill or fidelity in 
fiduciary duties or the intentional violation of an applicable law or 
regulation or both that governs the operations of the financial 
institution. A violation shall be considered intentional if the 
responsible officials know that the applicable action or inaction 
violated a law or regulation.
    (u) Military banking facility (MBF). A banking office located on a 
DoD installation and operated by a financial institution that the 
Department of the

[[Page 486]]

Treasury specifically has authorized, under its designation as a 
``Depository and Financial Agent of the U.S. Government,'' to provide 
certain banking services at the installation.
    (v) National bank. An association approved and chartered by the 
Comptroller of the Currency to operate a banking business.
    (w) On-base. Refers to physical presence on a domestic or overseas 
DoD installation.
    (x) Operating agreement. A mutual agreement between the installation 
commander and the on-base financial institution to document their 
relationships.
    (y) Overseas DoD installation. A military installation (or 
community) located outside the states of the United States, the District 
of Columbia, Guam or the Commonwealth of Puerto Rico.
    (z) Part-time MBF. A MBF that operates fewer than 5 days a week 
exclusive of additional payday service. When only payday service is 
provided, the MBF may be termed a ``payday service facility.''
    (aa) Regulatory Agency. Includes the Office of the Comptroller of 
the Currency, Department of the Treasury; the Federal Deposit Insurance 
Corporation; the Board of Governors of the Federal Reserve System; the 
respective Federal Reserve Banks; the National Credit Union 
Administration; Office of Thrift Supervision; the various state agencies 
and commissions that oversee financial institutions; and, for military 
banking facilities (MBFs), the Fiscal Assistant Secretary of the 
Treasury (or designee).
    (bb) State bank. An institution organized and chartered under the 
laws of one of the states of the United States to operate a banking 
business within that state.
    (cc) Thrift institution. An institution organized and chartered 
under federal or state law as a Savings Bank, Savings Association, or 
Savings and Loan Association.

[66 FR 46708, Sept. 7, 2001; 66 FR 54136, Oct. 26, 2001]



                     Subpart B_DoD Directive 1000.11



Sec. 231.10  Financial institutions on DoD installations.

    (a) Purpose. This subpart:
    (1) Updates policies and responsibilities for financial institutions 
that serve Department of Defense (DoD) personnel on DoD installations 
worldwide. Associated procedures are contained in subpart A of this 
part.
    (2) Prescribes consistent arrangements for the provision of services 
by financial institutions among the DoD Components, and requires that 
financial institutions operating on DoD installations provide, and are 
provided, support consistent with the policies stated herein.
    (b) Applicability. This subpart applies to the Office of the 
Secretary of Defense, the Military Departments, the Chairman of the 
Joint Chiefs of Staff, the Combatant Commands, the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities within the Department 
of Defense (hereafter collectively referred to as ``the DoD 
Components''), and all nonappropriated fund instrumentalities including 
the Military Exchange Services and morale, welfare and recreation (MWR) 
activities.
    (c) Definitions. Terms used in this subpart are set forth in subpart 
A of this part.
    (d) Policy. (1) The following pertains to financial institutions on 
DoD installations:
    (i) Except where they already may exist as of May 1, 2000, no more 
than one banking institution and one credit union shall be permitted to 
operate on a DoD installation.
    (ii) Upon the request of an installation commander and with the 
approval of the Secretary of the Military Department concerned (or 
designee), duly chartered financial institutions may be authorized to 
provide financial services on DoD installations to enhance the morale 
and welfare of DoD personnel and facilitate the administration of public 
and quasi-public monies. Arrangement for the provision of such services 
shall be in accordance with this subpart and the applicable provisions 
of subpart A of this part.

[[Page 487]]

    (iii) Financial institutions or branches thereof, shall be 
established on DoD installations only after approval by the Secretary of 
the Military Department concerned (or designee) and the appropriate 
regulatory agency.
    (A) Except in limited situations overseas (see paragraph 
(d)(2)(ii)(C) of this section), only banking institutions insured by the 
Federal Deposit Insurance Corporation and credit unions insured by the 
National Credit Union Share Insurance Fund or by another insurance 
organization specifically qualified by the Secretary of the Treasury, 
shall operate on DoD installations. These financial institutions may 
either be State or federally chartered; however, U.S. credit unions 
operated overseas shall be federally insured.
    (B) Military banking facilities (MBFs) shall be established on DoD 
installations only when a demonstrated and justified need cannot be met 
through other means. An MBF is a financial institution that is 
established by the Department of the Treasury under statutory authority 
that is separate from State or Federal laws that govern commercial 
banking. Section 265 of title 12, United States Code contains the 
provisions for the Department of the Treasury to establish MBFs. 
Normally, MBFs shall be authorized only at overseas locations. This form 
of financial institution may be considered for use at domestic DoD 
installations only when the cognizant DoD Component has been unable to 
obtain, through normal means, financial services from a State or 
federally chartered financial institution authorized to operate in the 
State in which the installation is located. In times of mobilization, it 
may become necessary to designate additional MBFs as an emergency 
measure. The Director, Defense Finance and Accounting Service (DFAS) may 
recommend the designation of MBFs to the Department of the Treasury.
    (C) Retail banking operations shall not be performed by any DoD 
Component. Solicitations for such services shall be issued, or proposals 
accepted, only in accordance with the policies identified in this 
subpart. The DoD Components shall rely on commercially available sources 
in accordance with DoD Directive 4100.15.\14\
---------------------------------------------------------------------------

    \14\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (iv) Installation commanders shall not seek the provision of 
financial services from any entity other than the on-base banking office 
or credit union. The Director, DFAS, with the concurrence of the Under 
Secretary of Defense (Comptroller) (USD(C)), may approve exceptions to 
this policy.
    (v) Financial institutions authorized to locate on DoD installations 
shall be provided logistic support as set forth in subpart A of this 
part.
    (vi) Military disbursing offices, nonappropriated fund 
instrumentalities (including MWR activities and the Military Exchange 
Services) and other DoD Component activities requiring financial 
services shall use on-base financial institutions to the maximum extent 
feasible.
    (vii) The Department encourages the delivery of retail financial 
services on DoD installations via nationally networked automated teller 
machines (ATMs).
    (A) ATMs are considered electronic banking services and, as such, 
shall be provided only by financial institutions that are chartered and 
insured in accordance with the provisions of paragraph (d)(1)(iii) of 
this section.
    (B) Proposals by the installation commander to install ATMs from 
other than on-base financial institutions shall comply with the 
provisions of paragraph (d)(1)(iv) of this section.
    (viii) Expansion of financial services (to include in-store banking) 
requiring the outgrant of additional space or logistical support shall 
be approved by the installation commander. Any DoD activity or financial 
institution seeking to expand financial services shall coordinate such 
requests with the installation bank/credit union liaison officer prior 
to the commander's consideration.
    (ix) The installation commander shall ensure, to the maximum extent 
feasible, that all financial institutions operating on that installation 
are given the opportunity to participate in pilot programs to 
demonstrate new financial-related technology or establish

[[Page 488]]

new business lines (e.g., in-store banking) where a determination has 
been made by the respective DoD Component that the offering of such 
services is warranted.
    (x) The installation commander shall approve requests for 
termination of financial services that are substantiated by sufficient 
evidence and forwarded to the Secretary of the Military Department 
concerned (or designee). The Secretary of the Military Department (or 
designee) shall coordinate such requests with the USD(C), through the 
Director, DFAS, before notification to the appropriate regulatory 
agency.
    (xi) Additional guidance pertaining to financial services is set 
forth in subpart A of this part.
    (2) The following additional provisions pertain to only to financial 
institutions on overseas DoD installations:
    (i) The extension of services by MBFs and credit unions overseas 
shall be consistent with the policies stated herein and with the 
applicable status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (ii) Financial services at overseas DoD installations may be 
provided by:
    (A) Domestic on-base credit unions operating overseas under a 
geographic franchise and, where applicable, as authorized by the 
pertinent status of forces agreements, other intergovernmental 
agreements, or host-country law.
    (B) MBFs operated under and authorized by the pertinent status of 
forces agreement, other intergovernmental agreement, or host-country 
law.
    (C) Domestic and foreign banks located on overseas DoD installations 
that are:
    (1) Chartered to provide financial services in that country, and
    (2) A party to a formal operating agreement with the installation 
commander to provide such services, and
    (3) Identified, where applicable, in the status of forces 
agreements, other intergovernmental agreements, or host-country law.
    (iii) In countries served by MBFs operated under contract, 
nonappropriated fund instrumentalities and on-base credit unions that 
desire, and are authorized, to provide accommodation exchange services 
shall acquire foreign currency from the MBF at the MBF accommodation 
rate; and shall sell such foreign currency at a rate of exchange that is 
no more favorable to the customer than the customer rate available at 
the MBF.
    (e) Responsibilities. (1) The Under Secretary of Defense 
(Comptroller) (USD(C)) shall develop policies governing establishment, 
operation, and termination of financial institutions on DoD 
installations and take final action on requests for exceptions to this 
subpart.
    (2) The Under Secretary of Defense (Acquisition, Technology and 
Logistics) (USD(AT&L)) shall monitor policies and procedures governing 
logistical support furnished to financial institutions on DoD 
installations, including the use of DoD real property and equipment.
    (3) The Under Secretary of Defense (Personnel and Readiness) 
(USD(P&R)) shall advise the USD(C) on all aspects of on-base financial 
institution services that affect the morale and welfare of DoD 
personnel.
    (4) DoD Component responsibilities pertaining to this subpart are 
set forth in subpart A of this part.



  Subpart C_Guidelines for Application of the Privacy Act to Financial 
                         Institution Operations



Sec. 231.11  Guidelines.

    (a) The following guidelines govern the application of DoD Directive 
5400.11 \15\ to those financial institutions that operate under this 
part:
---------------------------------------------------------------------------

    \15\ See footnote 1 to Sec. 231.1(a).
---------------------------------------------------------------------------

    (1) Financial institutions and their branches and facilities 
operating on DoD military installations do not fall within the purview 
of 5 U.S.C. 552 et seq.
    (i) These financial institutions do not fit the definition of 
``agency'' to which the Privacy Act applies, that is, any executive 
department, Military Department, government corporation, government-
controlled corporation, or other establishment in the executive branch 
of the government (including the Executive Office of the President),

[[Page 489]]

or an independent regulatory agency (5 U.S.C. 552(e) and 552a(a)(1)).
    (ii) These financial institutions are not ``government contractors'' 
within the meaning of 5 U.S.C. 552a(o), as they do not operate a system 
of records on behalf of an agency to accomplish an agency function. 
According to the Office of Management and Budget Privacy Act Guidelines, 
the provision relating to government contractors applies only to systems 
of records actually taking the place of a federal system which, but for 
the contract, would have been performed by an agency and covered by the 
Privacy Act. Clearly, the subject institutions do not meet these 
criteria.
    (iii) Since the Act does not apply to them, these financial 
institutions are not required to comply with 5 U.S.C. 552a(e)(3) in 
obtaining and making use of personal information in their relationships 
with personnel authorized to use such institutions. Thus, these 
institutions are not required to inform individuals from whom 
information is requested of the authority for its solicitation, the 
principal purpose for which it is intended to be used, the routine uses 
that may be made of it, or the effects of not providing the information. 
There also is no requirement to post information of this nature within 
on-base banking and credit union offices.
    (2) The financial institutions concerned hold the same position and 
relationship to their account holders, members, and to the government as 
they did before enactment of OMB Circular A-130. Within their usual 
business relationships, they still are responsible for safeguarding the 
information provided by their account holders or members and for 
obtaining only such information as is reasonable and necessary to 
conduct business. This includes credit information and proper 
identification, which may include social security number, as a 
precondition for the cashing of checks.
    (3) Financial institutions may incorporate the following conditions 
of disclosure of personal identification in all contracts, including 
loan agreements, account signature cards, certificates of deposit 
agreements, and any other agreements signed by their account holders or 
members:

    I hereby authorize the Department of Defense and its various 
Components to verify my social security number or other identifier and 
disclose my home address to authorized (name of financial institution) 
officials so that they may contact me in connection with my business 
with (name of financial institution). All information furnished will be 
used solely in connection with my financial relationship with (name of 
financial institution).

    (ii) When the financial institution presents such signed 
authorizations, the receiving military command or installation shall 
provide the appropriate information.
    (4) Even though an agreement described in paragraph (a)(3) of this 
section has not been obtained, the Department of Defense may provide 
these financial institutions with salary information and, when 
pertinent, the length or type of civilian or military appointment, 
consistent with DoD Directives 5400.11 and 5400.7.\16\ Some examples of 
personal information pertaining to DoD personnel that normally can be 
released without creating an unwarranted invasion of personal privacy 
are name, rank, date of rank, salary, present and past duty assignments, 
future assignments that have been finalized, office phone number, source 
of commission, and promotion sequence number.
---------------------------------------------------------------------------

    \16\ See footnote 1 to 231.1(a).
---------------------------------------------------------------------------

    (5) When DoD personnel with financial obligations are reassigned and 
fail to inform the financial institution of their whereabouts, they 
should be located by contacting the individual's last known commander or 
supervisor at the official position or duty station within that 
particular DoD Component. That commander or supervisor either shall 
furnish the individual's new official duty location address to the 
financial institution, or shall forward, through official channels, any 
correspondence received pertaining thereto to the individual's new 
commander or supervisor for appropriate assistance and response. 
Correspondence addressed to the individual concerned at his or her last 
official place

[[Page 490]]

of business or duty station shall be forwarded as provided by postal 
regulations to the new location. Once an individual's affiliation with 
the Department of Defense is terminated through separation or 
retirement, however, the Department's ability to render locator 
assistance (i.e., disclose a home address) is severely curtailed unless 
the public interest dictates disclosure of the last known home address. 
The Department may, at its discretion, forward correspondence to the 
individual's last known home address. The Department may not act as an 
intermediary for private matters concerning former DoD personnel who are 
no longer affiliated with the Department.
    (b) Questions concerning this guidance should be forwarded through 
channels to the Deputy Chief Financial Officer, Office of the Under 
Secretary of Defense (Comptroller), The Pentagon, Washington, DC 20301-
1100.

           Appendix A to Part 231--Sample Operating Agreement

Sample Operating Agreement Between Military Installations and Financial 
                              Institutions

    Note: The following operating agreement template identifies general 
arrangement and content. Content of the actual operating agreement may 
vary according to the circumstances of each installation.

 Operating Agreement Between (Name of Installation), (State or Country 
       Installation Located) and (Name of Financial Institution).

    This Agreement is made and entered into this day by and between the 
installation commander of (name of installation) in his or her official 
capacity as installation commander, hereinafter referred to as the 
``commander'' and the (name of financial institution), having its 
principal office at (location of home office) hereinafter referred to as 
the ``financial institution,'' together hereinafter referred to as ``the 
parties.'' Whereas the commander and the financial institution enter 
into this Operating Agreement upon the mutual consideration of the 
promises, covenants, and agreements hereinafter contained.
    1. The parties understand and agree that this Agreement shall in no 
way modify, change, or alter the terms and conditions of Lease Number 
(number of lease) covering the use of real property described therein, 
and this Agreement shall continue, subject to the termination provisions 
herein-after set forth, during the terms of said lease and any 
extensions thereof. In the case of a banking institution operating a 
military banking facility (MBF) overseas, this agreement will not change 
the conditions of the contract between the banking institution and the 
Department of Defense.
    2. The financial institution agrees to operate a (federally or 
state) chartered office on-base in accordance with the policies and 
procedures set forth in DoD Directive 1000.11, and Volume 5, Chapter 34, 
of the DoD 7000.14-R (as codified in the Code of Federal Regulations 
(CFR) at 32 CFR parts 230 and 231, respectively); and, in addition for 
the Overseas Military Banking Program (OMBP), the policies and 
procedures set forth in the applicable DoD contract. The hours of 
operations shall be between (hour office opens) and (hour office 
closes), and on the following days (weekdays office open), except on 
government holidays when the financial institution may be closed. The 
Program Office for the OMBP shall notify the commander of any changes to 
the DoD contract.
    3. The financial institution shall provide the following services:
    a. Services for Individuals.
    (1) Demand (checking) account services.
    (2) Cashing personal checks and government checks for 
accountholders.
    (3) Maintaining savings accounts and (any other interestbearing 
accounts).
    (4) Selling official checks, money orders, and traveler's checks.
    (5) Selling and redeeming United States savings bonds.
    (6) Providing direct deposit service.
    (7) Loan services.
    (8) Electronic banking (i.e., automated teller machines, internet 
banking).
    b. Services for disbursing officers.
    (1) Furnishing cash (if the financial institution's terms for doing 
so is consistent with sound management practices).
    (2) Accepting deposits for credit to the Treasury General Account 
(where the financial institution has entered into an agreement with the 
Department of the Treasury).
    c. Services for nonappropriated fund instrumentalities and private 
organizations.
    (1) Demand (checking) account services, including wire transfers.
    (2) Savings accounts and nonnegotiable certificates of deposit or 
other interestbearing accounts offered by the banking institution.
    (3) Currency and coin for change.
    4. Service charges shall be as follows:
    a. Service for individuals.
    (1) No fees shall be charged to individuals for the services listed 
in subparagraphs 3.a.(2), and 3.a.(5), above, except for subparagraph 
3.a.(2), wherein checks drawn on other

[[Page 491]]

financial institutions may be treated in accordance with the financial 
institution's established policy. Any charge to cash a government check 
shall not exceed that typically charged by financial institutions in the 
vicinity of the installation. Fees assessed to accountholders and 
nonaccountholders for use of automated teller machines shall be the 
customary service charges of the financial institution or those 
negotiated for base personnel per the attached schedule.
    (2) Checking and savings accounts. Fees for individual checking and 
savings accounts shall be the customary service charges of the financial 
institution or those negotiated for base personnel per the attached 
schedule.
    (3) Sale of official checks, money orders, traveler's checks and 
other types of financial paper. Charges for these services shall be the 
customary charges of the financial institution operating the on-base 
office.
    b. Service for Disbursing Officers. No charge shall be made for the 
services listed in subparagraph 3.b.(2), above. Compensation to the 
financial institution shall be per its separate agreement with the 
Department of the Treasury. Charges, if any, for the services stated in 
subparagraph 3.b.(1) shall be as locally negotiated with the financial 
institution.
    c. Nonappropriated Fund Instrumentalities and Private Organizations. 
State the charges or refer to a schedule of charges for funds and 
organizations that do not participate in a central banking program. For 
those activities participating in a central banking program, determine 
the compensation to the financial institution by account analysis.
    5. It is agreed that the financial institution shall:
    a. Notify the commander or designated representative of any proposed 
changes to the attached schedule of fees and services at least 30 days 
prior to implementation.
    b. Follow the requirements in Volume 5, Chapter 34, of DoD 7000.14-
R, as codified in the Code of Federal Regulations (CFR), and any changes 
thereto.
    c. Comply with Department of the Treasury requirements for 
establishment and operation of a Treasury General Account where the 
financial institution agrees to act as a depository for government 
funds.
    d. Absolve the (Military Service) and its representatives of 
responsibility or liability for the financial operation of the financial 
institution; and for any loss (including losses due to criminal 
activity), expenses, or claims for damages arising from financial 
institution operations.
    e. Indemnify, and hold harmless the United States from (and against) 
any loss, expense, claim, or demand, including attorney fees, court 
costs, and costs of litigation, to which the government may be subjected 
as a result of death, loss, destruction, or damage in connection with 
the use and occupancy of (Military Service) premises occasioned in whole 
or in part by officers, agents or employees of the financial institution 
operating an office of the financial institution.
    f. Favorably respond, whenever feasible, to reasonable local command 
requests for lectures and printed materials to support consumer credit 
education programs, financial management program and newcomer's 
briefings.
    g. Prominently post in the lobby of the financial institution the 
name, duty telephone number of the (Bank or Credit Union) Liaison 
Officer.
    h. Accept the government travel card in all on-base ATMs operated by 
the financial institution.
    i. Abide by the installation fire protection program, including 
immediate correction of fire hazards noted by the installation fire 
inspector during periodic fire prevention inspections.
    6. The commander shall provide the following space and support:
    a. Space requirements for financial institution operations shall be 
administered in accordance with the existing outgrant (i.e., lease, 
permit or license). (Show Number of Outgrant).
    b. Utilities (i.e., electricity, natural gas or fuel oil, water and 
sewage), heating and air conditioning, intrastation telephone service, 
and custodial and janitorial services to include garbage disposal and 
outdoor maintenance (such as grass cutting and snow removal) on a 
reimbursable basis.
    c. DoD housing and minor dependent education in overseas locations 
for military banking facility (MBF) and credit union personnel in 
accordance with Sec. Sec. 231.6(c)(1)(i)(C), 231.6(c)(1)(D), 
231.8(c)(2) and 231.8(c)(3).
    7. Termination of this Agreement shall be consistent with the 
termination provision of the real property lease and subpart A. The 
Secretary of the (Military Department) shall have the right to terminate 
this Agreement at any time. Any termination of the right of the 
financial institution to operate on the installation shall render this 
Agreement terminated without any applicable action by the commander.
    8. Any provision of this Agreement that is contrary to or violates 
any laws, rules, or regulations of the United States, its agencies, or 
the state of (state in which the financial institution is located) that 
apply on federal installations shall be void and have no force or 
effect; however, both parties to this Agreement agree to notify the 
other party promptly of any known or suspected continuing violation of 
such laws, rules, or regulations.
    9. So long as this Agreement remains in effect, it shall be reviewed 
jointly by the commander and the financial institution at least once 
every 5 years to ensure compatibility with current DoD issuances and to 
determine

[[Page 492]]

if any changes are required to the Agreement.
    In witness whereof, the commander, and the financial institution, by 
their duly authorized office, have hereunto set their hands this day of 
(month, day, year).
________________________________________________________________________
Financial Institution Official
________________________________________________________________________
Installation Commander

                Appendix B to Part 231--In-Store Banking

    A. Selection Process. The purpose of this guidance is to assure an 
impartial and thorough process to select the best on-base financial 
institution to provide in-store banking services when such services are 
desired and approved by the installation commander.
    1. Consistent with DoD Component delegation, the final decision to 
solicit for an in-store banking office rests with the installation 
commander.
    2. The DoD Component seeking in-store banking (e.g., in buildings 
operated by the Defense Commissary Agency, Military Exchange Services 
and MWR activities) shall draft the solicitation letter.
    3. Close coordination among all cognizant DoD organizations is 
essential throughout the selection process.
    B. Specific Procedures
    1. The need for in-store banking service may be identified from 
either:
    a. An unsolicited proposal from an on-base financial institution,
    b. A DoD Component's request, or
    c. An installation commander's request.
    2. The cognizant installation commander (or designee) is responsible 
for assessing the environment and authorizing the Bank/Credit Union 
Liaison Officer(s) to pursue the acquisition of in-store banking 
services. If no authorization is given, no further action is required.
    3. The cognizant installation commander shall determine whether a 
solicitation is required. (A solicitation shall be required whenever 
there are two or more financial institutions on a DoD installation.) If 
no solicitation is required, then the Bank/Credit Union Liaison Officer 
shall work directly with the on-base financial institution to obtain the 
requested services. Where there is neither a banking office nor an on-
base credit union, use the solicitation process outlined in 
Sec. 231.5(c) of this chapter, as supplemented by the provisions 
outlined in paragraph A, above.
    4. The solicitation letter shall identify the financial services 
being requested and classify these services as either mandatory or 
optional. In addition, the solicitation letter shall highlight any 
services that will be weighed as more important than others during the 
evaluation of the proposals. Any space consideration and terms of the 
proposed agreement also shall be identified in the letter.
    5. The installation commander (or designee) formally shall notify 
the selected financial institution and request that institution to 
coordinate with the proper activity to begin any construction, 
modifications or renovations necessary to open the in-store banking 
office. The cognizant facility management personnel shall begin the 
process of obtaining the necessary outgrant instruments. Concurrently, 
the requesting DoD Component representative and the financial 
institution representative shall draft the appropriate amendment to the 
operating agreement. The amendment should contain provisions regarding:
    a. The roles and responsibilities of all parties involved.
    b. The financial services to be provided, and
    c. The logistical support arrangements to include custodial services 
and security provisions. The amendment should be coordinated with the 
Bank/Credit Union Liaison Officer(s) prior to forwarding that document 
to the installation commander for signature. The amendment shall be 
signed by the installation commander (or designee) and the appropriate 
financial institution official with a copy furnished to the Secretary of 
the Military Department concerned (or designee) and the Director, DFAS 
(or designee).

  Appendix C to Part 231--Sample Certificate of Compliance for Credit 
                    Unions Certificate of Compliance

    I, (name), Chairman of the Board of Directors or President of the 
(credit union), located at (place), certify that this credit union 
complies with the requirements of section 170 of the Federal Credit 
Union Act (12 U.S.C 1770), for the allotment of space in federal 
buildings without charge for rent or services. The provision of no-cost 
office space is limited to credit unions if at least 95 percent of the 
membership to be served by the allotment of space is composed of 
individuals who are, or who were at the time of admission into the 
credit union, military personnel or federal employees, or members of 
their families.

________________________________________________________________________
(Date)
________________________________________________________________________
(Name)
(Chairman of the Board of Directors or the President)

    Note: The Certificate of Compliance shall be written on credit union 
letterhead.

[[Page 493]]



PART 234_CONDUCT ON THE PENTAGON RESERVATION--Table of Contents




Sec.
234.1 Definitions.
234.2 Applicability.
234.3 Admission to property.
234.4 Trespassing.
234.5 Compliance with official signs.
234.6 Interfering with agency functions.
234.7 Disorderly conduct.
234.8 Preservation of property.
234.9 Explosives.
234.10 Weapons.
234.11 Alcoholic beverages and controlled substances.
234.12 Restriction on animals.
234.13 Soliciting, vending, and debt collection.
234.14 Posting of materials.
234.15 Use of visual recording devices.
234.16 Gambling.
234.17 Vehicles and traffic safety.
234.18 Enforcement of parking regulations.
234.19 Penalties and effect on other laws.

    Authority: 10 U.S.C. 131 and 2674(c).

    Source: 63 FR 32619, June 15, 1998, unless otherwise noted.



Sec. 234.1  Definitions.

    As used in this part.
    Authorized person. An employee or agent of the Defense Protective 
Service, or any other Department of Defense employee or agent who has 
delegated authority to enforce the provisions of this part.
    Operator. A person who operates, drives, controls, otherwise has 
charge of, or is in actual physical control of a mechanical mode of 
transportation or any other mechanical equipment.
    Pentagon Reservation. Area of land and improvements thereon, located 
in Arlington, Virginia, on which the Pentagon Office Building, Federal 
Building Number 2, the Pentagon heating and sewage treatment plants, and 
other related facilities are located, including all roadways, walkways, 
waterways, and all areas designated for the parking of vehicles.
    Permit. A written authorization to engage in uses or activities that 
are otherwise prohibited, restricted, or regulated.
    Possession. Exercising direct physical control or dominion, with or 
without ownership, over property.
    State law. The applicable and nonconflicting laws, statutes, 
regulations, ordinances, and codes of the state(s) and other political 
subdivision(s) within whose exterior boundaries the Pentagon Reservation 
or a portion thereof is located.
    Traffic. Pedestrians, ridden or herded animals, vehicles, and other 
conveyances, either singly or together, while using any road, path, 
street, or other thoroughfare for the purposes of travel.
    Vehicle. Any vehicle that is self-propelled or designed for self-
propulsion, any motorized vehicle, and any vehicle drawn by or designed 
to be drawn by a motor vehicle, including any device in, upon, or by 
which any person or property is or can be transported or drawn upon a 
highway, hallway, or pathway; to include any device moved by human or 
animal power, whether required to be licensed in any state or otherwise.
    Weapons. Any loaded or unloaded pistol, rifle, shotgun, or other 
device which is designed to, or may be readily converted to, expel a 
projectile by the ignition of a propellant, by compressed gas, or by 
spring power; any bow and arrow, crossbow, blowgun, spear gun, hand-
thrown spear, slingshot, irritant gas device, explosive device, or any 
other implement designed to discharge missiles; any other weapon, 
device, instrument, material, or substance, animate or inanimate that is 
used for or is readily capable of, causing death or serious bodily 
injury, including any weapon the possession of which is prohibited under 
the laws of the state in which the Pentagon Reservation or portion 
thereof is located; except that such term does not include a pocket 
knife with a blade of less than 2\1/2\ inches in length.

[63 FR 32619, June 15, 1998, as amended at 63 FR 49003, Sept. 14, 1998]



Sec. 234.2  Applicability.

    The provisions of this part apply to all areas, lands, and waters on 
or adjoining the Pentagon Reservation and under the jurisdiction of the 
United States, and to all persons entering in or on the property. They 
supplement those penal provisions of Title 18, United States Code, 
relating to crimes and criminal procedure and those provisions of State 
law that are federal criminal offenses by virtue of the Assimilative 
Crimes Act, 18 U.S.C. 13.

[[Page 494]]



Sec. 234.3  Admission to property.

    (a) Access to the Pentagon Reservation or facilities thereon shall 
be restricted in accordance with Department of Defense Administrative 
Instruction Number 30 \1\ in order to ensure the orderly and secure 
conduct of Department of Defense business. Admission to facilities or 
restricted areas shall be limited to employees and other persons with 
proper authorization.
---------------------------------------------------------------------------

    \1\ Forward written requests for copies of the document to the 
Directorate for Freedom of Information and Security Review, Room 2C757, 
1400 Defense Pentagon, Washington, D.C. 20301-1400.
---------------------------------------------------------------------------

    (b) All persons entering or upon the Pentagon Reservation shall, 
when required and/or requested, display identification to authorized 
persons.
    (c) All packages, briefcases, and other containers brought into, on, 
or being removed from facilities or restricted areas on the Pentagon 
Reservation are subject to inspection and search by authorized persons. 
Persons entering on facilities or restricted areas who refuse to permit 
an inspection and search will be denied entry.
    (d) Any person or organization desiring to conduct activities 
anywhere on the Pentagon Reservation shall file an application for 
permit with the applicable Building Management Office. Such application 
shall be made on a form provided by the Department of Defense and shall 
be submitted in the manner specified by the Department of Defense. 
Violation of the conditions of a permit issued in accordance with this 
section is prohibited and may result in the loss of access to the 
Pentagon Reservation.



Sec. 234.4  Trespassing.

    (a) Trespassing, entering, or remaining in or upon property not open 
to the public, except with the express invitation or consent of the 
person or persons having lawful control of the property, is prohibited. 
Failure to obey an order to leave under paragraph (b) of this section, 
or reentry upon property after being ordered to leave or not reenter 
under paragraph (b) of this section, is also prohibited.
    (b) Any person who violates a Department of Defense rule or 
regulation may be ordered to leave the Pentagon Reservation by an 
authorized person. A violator's reentry may also be prohibited.



Sec. 234.5  Compliance with official signs.

    Persons on the Pentagon Reservation shall at all times comply with 
official signs of a prohibitory, regulatory, or directory nature.



Sec. 234.6  Interfering with agency functions.

    The following are prohibited:
    (a) Interference. Threatening, resisting, intimidating, or 
intentionally interfering with a government employee or agent engaged in 
an official duty, or on account of the performance of an official duty.
    (b) Violation of a lawful order. Violating the lawful order of a 
government employee or agent authorized to maintain order and control 
public access and movement during fire fighting operations, search and 
rescue operations, law enforcement actions, and emergency operations 
that involve a threat to public safety or government resources, or other 
activities where the control of public movement and activities is 
necessary to maintain order and public health or safety.
    (c) False information. Knowingly giving a false or fictitious report 
or other false information:
    (1) To an authorized person investigating an accident or violation 
of law or regulation, or
    (2) On an application for a permit.
    (d) False report. Knowingly giving a false report for the purpose of 
misleading a government employee or agent in the conduct of official 
duties, or making a false report that causes a response by the 
government to a fictitious event.



Sec. 234.7  Disorderly conduct.

    A person commits disorderly conduct when, with intent to cause 
public alarm, nuisance, jeopardy, or violence, or knowingly or 
recklessly creating a risk thereof, such person commits any of the 
following prohibited acts:
    (a) Engages in fighting or threatening, or in violent behavior.
    (b) Uses language, an utterance, or gesture, or engages in a display 
or act

[[Page 495]]

that is obscene, physically threatening or menacing, or done in a manner 
that is likely to inflict injury or incite an immediate breach of the 
peace.
    (c) Makes noise that is unreasonable, considering the nature and 
purpose of the actor's conduct, location, time of day or night, and 
other factors that would govern the conduct of a reasonably prudent 
person under the circumstances.
    (d) Creates or maintains a hazardous or physically offensive 
condition.
    (e) Impedes or threatens the security of persons or property, or 
disrupts the performance of official duties by Department of Defense 
employees, or obstructs the use of areas such as entrances, foyers, 
lobbies, corridors, concourses, offices, elevators, stairways, roadways, 
driveways, walkways, or parking lots.

[63 FR 32619, June 15, 1998, as amended at 63 FR 49003, Sept. 14, 1998]



Sec. 234.8  Preservation of property.

    Willfully destroying or damaging private property is prohibited. The 
throwing of articles of any kind from or at buildings or persons, 
improper disposal of rubbish, and open fires are also prohibited.



Sec. 234.9  Explosives.

    (a) Using, possessing, storing, or transporting explosives, blasting 
agents or explosive materials is prohibited, except pursuant to the 
terms and conditions of a permit issued by the applicable Building 
Management Office. When permitted, the use, possession, storage and 
transportation shall be in accordance with applicable Federal and State 
law.
    (b) Using or possessing fireworks or firecrackers is prohibited, 
except in designated areas under such conditions as may be established 
by the applicable Building Management Office or pursuant to the terms 
and conditions of a permit issued by the applicable Building Management 
Office, and in accordance with applicable State law.
    (c) Violation of the conditions established by the applicable 
Building Management Office or of the terms and conditions of a permit 
issued in accordance with this section is prohibited and may result in 
the loss of access to the Pentagon Reservation.



Sec. 234.10  Weapons.

    (a) Except as otherwise authorized under this section, the following 
are prohibited:
    (1) Possessing a weapon.
    (2) Carrying a weapon.
    (3) Using a weapon.
    (b) This section does not apply to any agency or Department of 
Defense component that has received prior written approval from the 
Defense Protective Service to carry, transport, or use a weapon in 
support of a security, law enforcement, or other lawful purpose while on 
the Pentagon Reservation.



Sec. 234.11  Alcoholic beverages and controlled substances.

    (a) Alcoholic beverages. The consumption of alcoholic beverages or 
the possession of an open container of an alcoholic beverage within the 
Pentagon Reservation is prohibited unless authorized by the Director, 
Washington Headquarters Services, or his designee, or the Heads of the 
Military Departments, or their designees. Written notice of such 
authorizations shall be provided to the Defense Protective Service.
    (b) Controlled substances. The following are prohibited:
    (1) The delivery of a controlled substance, except when distribution 
is made by a licensed physician or pharmacist in accordance with 
applicable law. For the purposes of this paragraph, delivery means the 
actual, attempted, or constructive transfer of a controlled substance.
    (2) The possession of a controlled substance, unless such substance 
was obtained by the possessor directly from, or pursuant to a valid 
prescription or order by, a licensed physician or pharmacist, or as 
otherwise allowed by Federal or State law.
    (c) Presence on the Pentagon Reservation when under the influence of 
alcohol, a drug, a controlled substance, or any combination thereof, to 
a degree that may endanger oneself or another person, or damage 
property, is prohibited.

[[Page 496]]



Sec. 234.12  Restriction on animals.

    Animals, except guide dogs for persons with disabilities, shall not 
be brought upon the Pentagon Reservation for other than official 
purposes.



Sec. 234.13  Soliciting, vending, and debt collection.

    Commercial or political soliciting, vending of all kinds, displaying 
or distributing commercial advertising, collecting private debts or 
soliciting alms upon the Pentagon Reservation is prohibited. This does 
not apply to:
    (a) National or local drives for funds for welfare, health, or other 
purposes as authorized by 5 CFR parts 110 and 950, Solicitation of 
Federal Civilian and Uniformed Services Personnel for Contributions to 
Private Voluntary Organizations, issued by the U.S. Office of Personnel 
Management under Executive Order 12353, 3 CFR, 1982 Comp., p. 139, as 
amended.
    (b) Personal notices posted on authorized bulletin boards, and in 
compliance with building rules governing the use of such authorized 
bulletin boards, advertising to sell or rent property of Pentagon 
Reservation employees or their immediate families.
    (c) Solicitation of labor organization membership or dues authorized 
by the Department of Defense under the Civil Service Reform Act of 1978.
    (d) Licensees, or their agents and employees, with respect to space 
licensed for their use.
    (e) Solicitations conducted by organizations composed of civilian 
employees of the Department of Defense or members of the uniformed 
services among their own members for organizational support or for the 
benefit of welfare funds for their members, after compliance with the 
requirements of Sec. 234.3(d).

[63 FR 32619, June 15, 1998, as amended at 63 FR 49003, Sept. 14, 1998]



Sec. 234.14  Posting of materials.

    Posting or affixing materials, such as pamphlets, handbills, or 
fliers on the Pentagon Reservation is prohibited except as provided by 
Sec. 234.13(b) or when conducted as part of activities approved by the 
applicable Building Management Office under Sec. 234.3(d).

[63 FR 32619, June 15, 1998, as amended at 63 FR 49003, Sept. 14, 1998]



Sec. 234.15  Use of visual recording devices.

    The use of cameras or other visual recording devices in restricted 
areas or in internal offices must be approved by the Department of 
Defense component occupying the space. Photographs for advertising or 
commercial purposes may only be taken with the permission of the Office 
of the Assistant to the Secretary of Defense for Public Affairs.



Sec. 234.16  Gambling.

    Gambling in any form, or the operation of gambling devices, is 
prohibited. This prohibition shall not apply to the vending or exchange 
of chances by licensed blind operators of vending facilities for any 
lottery set forth in a State law and authorized by the provisions of the 
Randolph-Sheppard Act (20 U.S.C. 107, et seq.).



Sec. 234.17  Vehicles and traffic safety.

    (a) In general. Unless specifically addressed by regulations in this 
part, traffic and the use of vehicles within the Pentagon Reservation 
are governed by State law. Violating a provision of State law is 
prohibited.
    (b) Open container of an alcoholic beverage. (1) Each person within 
a vehicle is responsible for complying with the provisions of this 
section that pertain to carrying an open container. The operator of a 
vehicle is the person responsible for complying with the provisions of 
this section that pertain to the storage of an open container.
    (2) Carrying or storing a bottle, can, or other receptacle 
containing an alcoholic beverage that is open or has been opened, or 
whose seal is broken, or the contents of which have been partially 
removed, within a vehicle on the Pentagon Reservation is prohibited.
    (3) This section does not apply to:
    (i) An open container stored in the trunk of a vehicle or, if a 
vehicle is not equipped with a trunk, an open container stored in some 
other portion of the vehicle designed for the storage of luggage and not 
normally occupied by

[[Page 497]]

or readily accessible to the operator or passengers; or
    (ii) An open container stored in the living quarters of a motor home 
or camper.
    (4) For the purpose of paragraph (a)(3)(i) of this section, a 
utility compartment or glove compartment is deemed to be readily 
accessible to the operator and passengers of a vehicle.
    (c) Operating under the influence of alcohol, drugs, or controlled 
substances. (1) Operating or being in actual physical control of a 
vehicle is prohibited while:
    (i) Under the influence of alcohol, a drug or drugs, a controlled 
substance or controlled substances, or any combination thereof, to a 
degree that renders the operator incapable of safe operation; or
    (ii) The alcohol concentration in the operator's blood or breath is 
0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams 
or more of alcohol per 210 liters of breath. Provided, however, that if 
State law that applies to operating a vehicle while under the influence 
of alcohol establishes more restrictive limits of alcohol concentration 
in the operator's blood or breath, those limits supersede the limits 
specified in this paragraph.
    (2) The provisions of paragraph (c)(1) of this section shall also 
apply to an operator who is or has been legally entitled to use alcohol 
or another drug.
    (3) Tests. (i) At the request or direction of an authorized person 
who has probable cause to believe that an operator of a vehicle within 
the Pentagon Reservation has violated a provision of paragraph (c)(1) of 
this section, the operator shall submit to one or more tests of the 
blood, breath, saliva, or urine for the purpose of determining blood 
alcohol, drug, and controlled substance content.
    (ii) Refusal by an operator to submit to a test is prohibited and 
may result in detention and citation by an authorized person. Proof of 
refusal may be admissible in any related judicial proceeding.
    (iii) Any test or tests for the presence of alcohol, drugs, and 
controlled substances shall be determined by and administered at the 
direction of an authorized person.
    (iv) Any test shall be conducted by using accepted scientific 
methods and equipment of proven accuracy and reliability operated by 
personnel certified in its use.
    (4) Presumptive levels. (i) The results of chemical or other 
quantitative tests are intended to supplement the elements of probable 
cause used as the basis for the arrest of an operator charged with a 
violation of this section. If the alcohol concentration in the 
operator's blood or breath at the time of the testing is less than the 
alcohol concentration specified in paragraph (c)(1)(ii) of this section, 
this fact does not give rise to any presumption that the operator is or 
is not under the influence of alcohol.
    (ii) The provisions of paragraphs (c)(3) and (c)(4)(i) of this 
section are not intended to limit the introduction of any other 
competent evidence bearing upon the question of whether the operator, at 
the time of the alleged violation, was under the influence of alcohol, a 
drug or drugs, or a controlled substance or controlled substances, or 
any combination thereof.

[63 FR 32619, June 15, 1998, as amended at 63 FR 49003, Sept. 14, 1998]



Sec. 234.18  Enforcement of parking regulations.

    Parking regulations for the Pentagon Reservation shall be enforced 
in accordance with Department of Defense Administrative Instruction 
Number 88 \2\ and State law; violating such provisions is prohibited. A 
vehicle parked in any location without authorization, or parked contrary 
to the directions of posted signs or markings, shall be subject to 
removal at the owner's risk and expense, in addition to any penalties 
imposed. The Department of Defense assumes no responsibility for the 
payment of any fees or costs related to such removal which may be 
charged to the owner of the vehicle by the towing organization. This 
section may be supplemented from time to time with the approval of the 
Director, Washington Headquarters Services, or his designee, by the 
issuance and posting of such parking directives as may be required,

[[Page 498]]

and when so issued and posted such directive shall have the same force 
and effect as if made a part hereof.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 234.3(a).
---------------------------------------------------------------------------



Sec. 234.19  Penalties and effect on other laws.

    (a) Whoever shall be found guilty of willfully violating any rule or 
regulation enumerated in this part is subject to the penalties imposed 
by Federal law for the commission of a Class B misdemeanor offense.
    (b) Whoever violates any rule or regulation enumerated in this part 
is liable to the United States for a civil penalty of not more than 
$1,000.
    (c) Nothing in this part shall be construed to abrogate any other 
Federal laws.



PART 235_SALE OR RENTAL OF SEXUALLY EXPLICIT MATERIAL ON DoD PROPERTY
--Table of Contents




Sec.
235.1 Purpose.
235.2 Applicability and scope.
235.3 Definitions.
235.4 Policy.
235.5 Responsibilities.
235.6 Procedures.
235.7 Information requirements.

    Authority: 10 U.S.C. 2489a.

    Source: 64 FR 6218, Feb. 9, 1999, unless otherwise noted.



Sec. 235.1  Purpose.

    This part implements 10 U.S.C. 2489a, consistent with DoD Directive 
1330.9 \1\ by providing guidance about restrictions on the sale or 
rental of sexually explicit materials on property under the jurisdiction 
of the Department of Defense or by members of the Armed Forces or DoD 
civilian officers or employees, acting in their official capacities.
---------------------------------------------------------------------------

    \1\ Copies are available at http://web7.osd.mil/corres.htm.
---------------------------------------------------------------------------



Sec. 235.2  Applicability and scope.

    This part: (a) Applies to the Office of the Secretary of Defense, 
the Military Departments (including the Coast Guard when it is operating 
as a Service in the Navy), the Chairman of the Joint Chiefs of Staff, 
the Combatant Commands, the Inspector General of the Department of 
Defense, the Defense Agencies, and the DoD Field Activities.
    (b) Shall not confer rights on any person.



Sec. 235.3  Definitions.

    Dominant theme. A theme of any material that is superior in power, 
influence, and importance to all other themes in the material combined.
    Lascivious. Lewd and intended or designed to elicit a sexual 
response.
    Material. An audio recording, a film or video recording, or a 
periodical with visual depictions, produced in any medium.
    Property under the jurisdiction of the Department of Defense. 
Commissaries operated by the Defense Commissary Agency and facilities 
operated by the Army and Air Force Exchange Service, the Navy Exchange 
Service Command, the Marine Corps Exchanges, and U.S. Navy ships' stores 
(sometimes referred to collectively herein as ``retail outlets''), 
excluding, for the purposes of this part, entities that are not 
instrumentalities of the United States.
    Sexually explicit material. Material, the dominant theme of which is 
the depiction or description of nudity, including sexual or excretory 
activities or organs, in a lascivious way.



Sec. 235.4  Policy.

    In implementing 10 U.S.C. 2489a, it is DoD policy that: (a) No 
sexually explicit material may be offered for sale or rental on property 
under the jurisdiction of the Department of Defense, and no member of 
the Armed Forces, or DoD civilian officer or employee, acting in his or 
her official capacity, shall offer for sale or rental any sexually 
explicit material.
    (b) Material shall not be deemed sexually explicit because of any 
message or point of view expressed therein.



Sec. 235.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Force Management Policy, 
under the Under Secretary of Defense for Personnel and Readiness, shall:
    (1) Monitor and, as to DoD resale activities under the Assistant 
Secretary's authority, direction and control, ensure compliance with 
this part;

[[Page 499]]

    (2) Establish, and appoint a chair of, the Resale Activities Board 
of Review (the ``Board'') and approve senior representatives from the 
Army and Air Force Exchange Service, the Navy Exchange Service, and the 
Marine Corps Exchange Service; and approve a senior representative from 
each of the Military Departments, if designated by the Military 
Department concerned, to serve as board members on the Resale Activities 
Board.
    (3) Monitor the activities of the Resale Activities Board of Review 
and ensure that the Board discharges its responsibilities as set forth 
in Sec. 235.6.
    (b) The Secretaries of the Military Departments shall ensure that 
their respective component DoD resale activities comply with this part 
and may designate a senior representative to serve on the Board.
    (c) The Secretary of the Army and the Secretary of the Air Force 
shall each appoint one senior representative from the Army and Air Force 
Exchange Service to serve on the Board.
    (d) The Secretary of the Navy shall appoint a senior representative 
from the Navy Exchange Service Command and a senior representative from 
the Marine Corps Exchange Service to serve on the Board.



Sec. 235.6  Procedures.

    (a) The Board shall have the authority and responsibility 
periodically to review material offered or to be offered for sale or 
rental on property under DoD jurisdiction, and to determine whether any 
such material is sexually explicit in accordance with this part. Within 
60 days of the issuance of this part, the Board shall undertake and 
complete an initial review of material that is offered for sale or 
rental on the date that this part becomes effective.
    (b) If the Board determines that any material offered for sale or 
rental on property under DoD jurisdiction is sexually explicit, such 
material shall be withdrawn from all retail outlets where it is sold or 
rented and returned to distributors or suppliers, and shall not be 
purchased absent further action by the Board.
    (c) Following its initial review under paragraph (a) of this 
section, the Board shall convene as necessary to determine whether any 
material offered or to be offered for sale or rental on property under 
DoD jurisdiction is sexually explicit. The Board members shall, to the 
extent practicable, maintain and update relevant information about 
material offered or to be offered for sale or rental on property under 
DoD jurisdiction.
    (d) If any purchasing agent or manager of a retail outlet has reason 
to believe that material offered or to be offered for sale or rental on 
property under DoD jurisdiction may be sexually explicit as defined 
herein, and such material is not addressed by the Board's instructions 
issued under paragraph (e) of this section, he or she shall request a 
determination from the Board about such material.
    (e) At the conclusion of its initial review under paragraph (a) of 
this section, and, thereafter, from time to time as necessary, the Board 
shall provide instructions to purchasing agents and managers of retail 
outlets about the withdrawal and return of sexually explicit material. 
The Board may also provide instructions to purchasing agents and 
managers of retail outlets about material that it has determined is not 
sexually explicit. Purchasing agents and managers of retail outlets 
shall continue to follow their usual purchasing and stocking practices 
unless instructed otherwise by the Board.



Sec. 235.7  Information requirements.

    The Chair, Resale Activities Board of Review, shall submit to the 
Assistant Secretary of Defense for Force Management Policy an annual 
report documenting the activities, decisions, and membership of the 
Board. The annual report shall be due on October 1. The annual report 
required by this part is exempt from licensing in accordance with 
paragraph 5.4.3. of DoD 8910.1-M.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 235.1.
---------------------------------------------------------------------------



PART 237a_PUBLIC AFFAIRS LIAISON WITH INDUSTRY--Table of Contents




Sec.
237a.1 Purpose.
237a.2 Applicability.
237a.3 Objective and policy.
237a.4 Procedures.


[[Page 500]]


    Authority: 5 U.S.C. 301.

    Source: 35 FR 10889, July 7, 1970, unless otherwise noted.



Sec. 237a.1  Purpose.

    This part establishes (a) guidance for preparation of the Defense 
Industry Bulletin, and (b) includes guidance and procedures governing 
Department of Defense cooperation with industry on (1) public affairs 
matters in general, (2) industry-sponsored events, and (3) advertising 
defense themes and products.



Sec. 237a.2  Applicability.

    The provisions of this part apply to all components of the DoD.



Sec. 237a.3  Objective and policy.

    (a) It is important that American industry--particularly defense 
contractors--understand the plans, programs, and activities of the DoD. 
Such understanding can be achieved by (1) wide dissemination of 
information to the business community, consistent with national 
security, and (2) cooperation with industry in public relations 
activities which are not contrary to the national or DoD interests.
    (b) As outlined in part 237 of this subchapter, DoD components shall 
cooperate with industry at local and regional levels. However, they will 
notify the Assistant Secretary of Defense (Public Affairs) (ASD(PA)) 
promptly of any local or regional activity which has the potential of 
being escalated, or which has been escalated by unforeseen 
circumstances, to national or international interest.



Sec. 237a.4  Procedures.

    (a) Defense Industry Bulletin. The bulletin, authorized by part 237 
of this subchapter to apprise defense contractors, trade associations 
and other business organizations of DoD policies, plans, programs, and 
procedures which have an impact on business or industry, achieve 
widespread awareness and understanding of DoD policies, plans, programs, 
and procedures governing research, development and production, and the 
procurement of goods and services, and serve as a guide to and stimulate 
ideas throughout the industrial community concerning solutions of 
problems arising in fulfillment of DoD requirements, will be published 
and distributed by the Directorate for Community Relations, OASD(PA).
    (1) DoD components may submit any of the items listed below to the 
Editor, Defense Industry Bulletin, OASD(PA), by the 20th day of each 
month. If no significant information exists, a negative report will be 
submitted.
    (i) Articles, preferably by-lined, with supporting photographs or 
illustrations. (Suggested length is 2,000-2,500 words, but may be 
shorter or longer as coverage of subject requires.)
    (ii) Material covering subjects that are timely and of particular 
interest to those organizations oriented toward defense contracting, 
including, but not necessarily limited to:
    (a) Research and development;
    (b) Procurement;
    (c) Contract management;
    (d) Small business opportunity;
    (e) DoD policies affecting industry;
    (f) Management improvement programs, such as Zero Defects;
    (g) Programs successfully conducted by industry and the DoD working 
together;
    (h) Explanations of new DoD issuances affecting industry; and
    (i) Major organizational changes.
    (iii) Key personnel appointment and reassignment announcements, for 
the ``About People'' section.
    (iv) New or revised official directives, instructions, regulations, 
and other publications, for the ``Bibliography'' section.
    (v) Scheduled technical meetings and symposia sponsored by DoD 
organizations, projected at least forty-five (45) days, for the 
``Meeting and Symposia'' section.
    (vi) Announcements of meetings, conferences, briefings, 
demonstrations, exercises, etc., projected at least forty-five (45) 
days, for the ``Calendar of Events.''
    (2) Each DoD component will designate one action officer and one 
alternate to assist the Directorate for Community Relations, OASD(PA), 
in carrying out responsibilities defined in paragraph (a)(1) of this 
section.
    (b) Participation in special events-- (1) Industry-sponsored events. 
(i) DoD components are encouraged to cooperate with and assist industry 
in activities

[[Page 501]]

and events beneficial to the Government, provided such cooperation and 
assistance is not in conflict with the provisions of part 40 of this 
chapter which authorizes participation in:
    (a) Luncheons, dinners and similar gatherings when the host is an 
industrial, technical, or professional association, not an individual 
defense contractor or other commercial firm;
    (b) Public ceremonies of mutual interest to industry, local 
committees, and the DoD (examples--ship launchings, rollouts, and first 
flights);
    (c) Industrial programs which are in support of Government policy 
(example--international exhibits which offer the opportunity to promote 
U.S. scientific and technical leadership); and
    (d) Civic and community projects in which industry relationship is 
remote from the purpose and tenor of the event (example--Armed Forces 
Day event sponsored by an individual firm).
    (ii) Participation in events which benefit a particular firm 
(examples--open houses and ceremonies dedicating new facilities) will be 
limited, normally, to speaker participation (see part 238 of this 
subchapter).
    (2) DoD-sponsored events. Generally, DoD public affairs programs 
will be performed within authorized resources. Contractor participation 
in DoD-sponsored events involving a firm's product or service may be 
authorized, provided such participation is in the Government's interest.
    (3) Jointly sponsored events. Joint DoD-industry sponsorship may be 
desirable in certain instances (examples--seminars, conferences, and 
symposia). Industry assistance is normally provided by a trade, 
technical, or professional association. Requirements for clearance of 
DoD official information prepared for disclosure (see part 159 of this 
chapter and DoD Directive 5230.9, ``Clearance of Department of Defense 
Public Information'' \1\) will be adhered to when applicable.
---------------------------------------------------------------------------

    \1\ Filed as part of the original. Copies available from U.S. Naval 
Publications and Forms Center, 5801 Tabor Ave., Philadelphia, Pa. 19120, 
Attn: Code 300.
---------------------------------------------------------------------------

    (4) General. Participation in industrial events of national and 
international interest must be approved by the ASD(PA) in advance. 
Detailed proposals, including cost estimates, will be submitted to the 
ASD(PA) through the headquarters of the DoD component concerned. 
Requests for approval involving industry participation in either DoD or 
DoD-industry sponsored events will specify the nature and extent of 
industry-furnished assistance, if any.
    (c) Use of DoD insignia, themes, and products in advertising--(1) 
Insignia. Use of insignia is governed by part 237 of this subchapter.
    (2) Themes and products. Requests for use of DoD themes and products 
in commercial advertising and other promotions will be evaluated in 
terms of their benefit to the DoD. A determination as to whether 
cooperation should be extended will be made by the ASD (PA) (except in 
the case of DoD component-controlled insignia), in accordance with the 
provisions of part 237 of this subchapter. The DoD will bear only those 
advertising costs authorized by section XV of the Armed Services 
procurement regulation in part 15 of this chapter.
    (3) Filmed material. Participation in the production of motion 
pictures and TV programs, including filmed commercials, will be governed 
by provisions of DoD Instruction 5410.15, \1\ ``Delineation of DoD 
Audio-Visual Public Affairs Responsibilities and Policies,'' and DoD 
Instruction 5410.16,\1\ ``Procedures for DoD Assistance on Production of 
Non-Government Motion Pictures and Television Programs.''
    (d) Use of contractor product identification. DoD components may 
identify contractors in their information activities whenever the major 
responsibility for a product (example--an aircraft) can be clearly and 
fairly credited to an identifiable contractor. In these instances, DoD 
information releases will include both the manufacturer's name and the 
DoD component's designation of the product.
    (e) Solicitation. (1) DoD representatives will not solicit, or 
authorize others to solicit, from contractors for advertising, 
contributions, donations, subscriptions, or other emoluments. Where 
there is a legitimate need for industry promotion items, such as scale 
models--for example in recruiting programs--the headquarters of the DoD

[[Page 502]]

Component concerned may authorize procurement of such items as required.
    (2) Defense contractors wanting to distribute items through official 
DoD channels should be advised to contact the headquarters of the DoD 
component concerned for guidance.
    (f) Briefings. (1) Advanced planning briefings for industry are 
governed by DoD Instruction 5230.14, \1\ ``Advanced Planning Briefings 
for Industry.''
    (2) Classified meetings are governed by DoD Directive 5200.12,\1\ 
``Security Measures, Approval and Sponsorship for Scientific and 
Technical Meetings Involving Disclosure of Classified Information.''
---------------------------------------------------------------------------

    \1\ See footnote 1 on previous page.
---------------------------------------------------------------------------

    (g) Visits to contractor facilities. (1) Visits to contractor 
facilities will be governed by the provisions of DoD Manual 5220.22-
M,\2\ ``Industrial Security Manual for Safeguarding Classified 
Information (Attachment to DD Form 441).''
---------------------------------------------------------------------------

    \2\ Available from Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402--$3.05.
---------------------------------------------------------------------------

    (2) When DoD Components desire to sponsor such visits by nationally 
known press representatives, approval will be obtained from both the 
contractor and the ASD(PA).



PART 238_ARMED FORCES COMMUNITY RELATIONS--Table of Contents




Sec.
238.1 Reissuance and purpose.
238.2 Applicability and scope.
238.3 Definitions.
238.4 Policy.
238.5 Procedures.
238.6 Guidelines.
238.7 Funding.
238.8 Responsibilities and authorities.
238.9 Information requirements.
238.10 Armed Forces aerial demonstrations.
238.11 Armed Forces bands, troops, and units in support of public 
          programs.
238.12 Speaking engagements.
238.13 National organizations.
238.14 Armed Forces Day.
238.15 Veterans Day observances and national conventions of national 
          veterans organizations.
238.16 Presidential wreath-laying ceremonies.
238.17 Sports activities.
238.18 DoD coordinators.
238.19 Miscellaneous public affairs-related activities.

Enclosure 1 to Part 238--Format Request for Aerial Demonstration
Enclosure 2 to Part 238--Request Format--Armed Forces Participation in 
          Public Events
Enclosure 3 to Part 238--Fact Sheet
Enclosure 4 to Part 238--Speaker Request Format
Enclosure 5 to Part 238--President's Approved Wreath List

    Authority: 5 U.S.C. 22.

    Source: 45 FR 21229, Apr. 1, 1980, unless otherwise noted.



Sec. 238.1  Reissuance and purpose.

    This part is reissued to supplement part 237 of this title and to 
provide procedural guidance for the planning and conduct of community 
relations activities of the Armed Forces.



Sec. 238.2  Applicability and scope.

    (a) The provisions of this part apply to the Office of the Secretary 
of Defense, the Military Departments (including their National Guard and 
Reserve Components), the Organization of the Joint Chiefs of Staff, the 
Unified and Specified Commands, and the Defense Agencies (hereafter 
referred to as ``DoD Components''). (As used in this Instruction, the 
term ``Military Services'' refers to the Army, Navy, Air Force, and 
Marine Corps.)
    (b) Its provisions encompass all DoD community relations programs 
regardless of name, program, or sponsorship.



Sec. 238.3  Definitions.

    (a) As used herein the following definitions apply:
    (1) Military installation. Any installation owned or operated by the 
Department of Defense or by a DoD Component such as a base, station, 
post, reservation, camp, depot, fort, terminal, facility, ship, school, 
and college.
    (2) Elsewhere. Any location, other than a military installation, at 
or on which a community relations program may be conducted.
    (3) Official Federal Government functions. Those activities in which 
officials of the Federal Government are involved in the performance of 
their official duties.

[[Page 503]]

    (4) Official DoD functions. Those activities (including Defense 
Committees, Joint Civilian Orientation Conference (JCOC), and activities 
held on military installations, or elsewhere when the appropriate 
commander certifies that suitable facilities are not available on a 
military installation) which are sponsored by a Military Service, have 
as their principal purpose the promotion of esprit de corps, and are 
conducted primarily for active duty personnel, dependents, and guests.
    (5) Official civic functions. Those activities in which officials of 
State, county, or municipal governments are involved in the performance 
of their official duties (for example, inaugurals, dedications of public 
buildings and projects, the convening of legislative bodies, and 
ceremonies for officially invited Government visitors).
    (b) Other terms used in this part are defined in Sec. 237.8 of this 
title, and Sec. Sec. 238.10 and 238.12 of this part.



Sec. 238.4  Policy.

    (a) The policy of the Secretary of Defense governing Armed Forces 
Community Relations programs is based on public law and executive orders 
and is set forth in part 237 of this title. Amplification of basic 
policy and supplemental guidelines for the planning and conduct of 
specific categories and types of community relations programs are 
contained in this part.
    (b) The Assistant Secretary of Defense (Public Affairs) (ASD(PA)) 
been designated as the principal staff assistant to act for and in 
behalf of the Secretary of Defense in granting any exceptions to basic 
public affairs policy.
    (1) Requests for exceptions to this policy shall be submitted to the 
ASD(PA) via command channels.
    (2) Such requests shall contain, as a minimum:
    (i) A description of the community relations program contemplated,
    (ii) A justification for approval of the exception, and
    (iii) Appropriate recommendations.
    (3) Exceptions shall be granted on a case-by-case basis.
    (c) Policy guidance concerning public affairs relations with 
business and non-Government organizations representing business is 
contained in part 237a of this title.
    (d) Policy governing the use of military carriers for public affairs 
purposes is contained in DoD Instruction 5435.2,\1\ ``Delegation of 
Authority to Approve Travel In and Use of Military Carriers for Public 
Affairs Purposes,'' April 25, 1975.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from U.S. Naval Publications 
and Forms Center, 5801 Tabor Ave., Philadelphia, Pa., 19120, Attn: Code 
301.
---------------------------------------------------------------------------



Sec. 238.5  Procedures.

    (a) Within basic legal and policy limitations, commanders at all 
levels who plan or conduct a community relations program shall consider 
initially:
    (1) The interests of the Department of Defense and the community as 
a whole.
    (2) Pertinent operational requirements.
    (3) The availability of adequate and appropriate resources.
    (b) When a proposed community relations program exceeds local 
support capability or the scope of local public affairs responsibility, 
it shall be referred, via command channels, to the appropriate higher 
echelon. The proposal shall contain, as a minimum:
    (1) A description of the program;
    (2) A list of support requirements;
    (3) A description of the anticipated scope of the program;
    (4) Comments concerning expected community reactions; and
    (5) Appropriate recommendations.
    (c) All DoD Components shall use approved DoD request formats, 
appended as various enclosures to this part, in processing requests by 
civilian sponsors for Armed Forces support of community relations 
programs. These formats, which may be reproduced locally, provide 
sufficient information to permit the approving authority to:
    (1) Evaluate the appropriate degree of Armed Forces support, and
    (2) Determine compliance with the requirements of this part.
    (d) To ensure that a proposed community relations program conforms 
to the limitations imposed by public law and by policy contained in part 
237 of this title, the following aspects of the

[[Page 504]]

program shall be evaluated (using the criteria set forth in Sec. 
238.6.)
    (1) The objectives and purposes of the program (``program 
criteria'').
    (2) The interests and objectives of the sponsor or sponsoring group 
(``sponsor criteria'').
    (3) The nature or character of the location of the program (``site 
criteria'').
    (4) The full particulars of DoD support (``support criteria'').



Sec. 238.6  Guidelines.

    (a) The Department of Defense authorizes and encourages support of 
community relations programs when at least one of the conditions listed 
in each of the following criteria categories (program, sponsor, site, 
and support) is met:
    (1) Program criteria. When the program is:
    (i) Specifically authorized or directed by public law, executive 
order, or the Secretary of Defense.
    (ii) An official Federal Government, military, or civil ceremony or 
function.
    (iii) An event or occasion of general interest or benefit to a 
local, State, regional, or national community, and is available to the 
community.
    (iv) In support of authorized recruiting or personnel procurement 
programs.
    (v) In support of:
    (A) United, federated or joint fund-raising campaigns authorized by 
DoD Directive 5035.1,\1\ ``Fund-Raising Within the Department of 
Defense, April 7, 1978;
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 238.4(d).
---------------------------------------------------------------------------

    (B) Such fund-raising appeals as the President or the Director of 
the Office of Personnel Management may authorize; or
    (C) The Military Service Aid societies.

    Note: DoD support for local fund-raising programs, other than those 
described above, is authorized only when the fund-raising program is 
local in nature, is of community-wide interest and benefit, and has the 
support of endorsement of the local united, federated, or joint campaign 
officials; or when, in the judgment of the local commander, support of a 
purely local charitable drive is part of the responsible role of the 
military installation in the local community. Volunteer fire department, 
rescue unit, or youth activity fund drives are examples of such local 
programs.

    (vi) In support of fund-raising campaigns solely for the benefit of 
U.S. teams competing in the Pan American Games or the Olympic Games (see 
DoD Directive 1330.4,\1\ ``Participation in Interservice National and 
International Sports Activities,'' November 14, 1968).
    (vii) Of a patriotic nature; or with the addition of military 
support, designed to include a patriotic acknowledgement; or the 
celebration of a Government-recognized local, State, regional, or 
national holiday.
    (2) Sponsor criteria. The sponsor or sponsoring organization does 
not specifically exclude any person from its membership for reasons of 
race, creed, color, or national origin. DoD support is authorized for 
programs sponsored by organizations whose qualification for membership 
is based on sex or national origin only when the primary benefit and 
interest are to the community rather than to the organization. DoD 
support is authorized when the sponsor is:
    (i) A local, State, or Federal Government.
    (ii) A veteran's, Military Service-related, patriotic, or historical 
organization or auxiliary.
    (iii) An organization (civic, service, youth, professional, 
educational, business, trade, or labor) whose interests are in support 
of the community.
    (iv) A commercial enterprise only when:
    (A) DoD support is patriotic in nature, is incidental to the 
program, and does not benefit selectively nor appear to benefit 
selectively the commercial activity of the sponsor;
    (B) The sponsor's role is clearly civic in nature; and
    (C) The commercial interest is subordinate to the community 
interest, and benefit in the program.
    (v) A public school, public college, or public university.
    Note: Support is authorized for programs sponsored by nonpublic 
schools, colleges, or universities only when the program is (A) of a 
community-wide nature of common interest and benefit, is open to all, 
and is broadly

[[Page 505]]

publicized; or (B) when the program is clearly patriotic or educational 
in nature or is in support or recruiting programs.
    (3) Site criteria. Admission, seating, and all other accommodations 
and site facilities connected with any public programs are available to 
all without regard to race, creed, color, national origin, or sex, and 
the location of the program is:
    (i) A military installation.
    (ii) A local, State, or Federal Government property, facility or 
building.
    (iii) A bona fide community center.
    (iv) A private or commercial building only when DoD support is 
patriotic in nature, is incidental to the program, and does not benefit 
selectively nor appear to benefit selectively the owner of the building 
or the agent.
    (v) A religious building or facility only when the program is of a 
community-wide, nonsectarian nature of common interest and benefit and 
is broadly publicized.
    (vi) A shopping mall or center only when the program is a recruiting 
program, and:
    (A) The support is directly related to the recruiting activities 
taking place, and the type and amount of support are commensurate with 
the scope and nature of the recruiting activity.
    (B) Community relations support is not advertised, promoted, or 
presented as an attraction for the center or mall (or for special 
business activities such as promotional sales).
    (C) The support activities are in no way related, nor do they appear 
to be related, to a particular business or particular group of business 
establishments within the mall or center.
    Note: Because of the commercial nature of shopping malls and 
centers, special care must be exercised to avoid the selective benefit 
of specific business interests. Where two or more such centers or malls 
are part of a community, support of recruiting activities must be 
administered in an even-handed manner, with fairness and extreme care.
    (4) Support criteria. The Department of Defense authorizes support 
which:
    (i) Can be reasonably expected to bring credit to the individuals 
involved and to the Armed Forces and is at no additional cost to the 
Government; or
    (ii) Is specifically authorized to be at Government expense by this 
part (Sec. 238.7), by public law, by executive order, or by the 
Secretary of Defense.
    (b) The Department of Defense does not authorize support of 
community relations programs when any one of the conditions listed in 
one of the following criteria categories exists.
    (1) Program criteria. When the program is:
    (i) Intended or appears to endorse, benefit selectively, or favor 
any private individual, group corporation, religion, sect, ideological 
movement, political organization candidate, or commercial venture.
    (ii) For the purpose of solicitation of votes in a political 
election.
    (iii) A commercially oriented program, such as a Christmas parade, a 
motion picture premiere, a fashion show, a beauty pageant, or any other 
event or activity conducted to stimulate sales or increase the flow of 
business traffic.
    (iv) For the purpose of raising funds for causes other than those 
specified in paragraph (a)(1)(v) of this section.
    (v) One in which public confrontation is planned or likely or where 
the real or apparent purpose is to stage controversy.
    (2) Sponsor criteria. The sponsor or sponsoring organizations 
specifically excludes any person from its membership for reasons of 
race, creed, color, or national origin.
    (i) A commercial enterprise (except as specified in paragraph 
(a)(2)(iv) of this section).
    (ii) A religious group (except for a school, as specified in 
paragraph (a)(2)(v) of this section, sect, or partisan political 
organization, or ideological movement.
    (iii) An organization whose constitution, bylaws, membership 
qualifications, or ritual is privately held and not available to the 
general public (e.g., many fraternal organizations).
    (3) Site criteria. When:
    (i) Admission, seating, and any other accommodation or facility 
connected with a public program are barred to any person because of 
race, creed, color, national origin, or sex.
    (ii) The location of the program is a private, commercial, or 
religious facility, a shopping mall or center, or a nonpublic school, 
college, or university

[[Page 506]]

(except as specified in paragraph (a)(3) of this section).
    (4) Support criteria. When DoD support:
    (i) Has been determined, by a finding of fact, to interfere with the 
customary or regular employment of non-DoD persons in their art, trade, 
or profession.
    (ii) Is or could be considered to be the primary or major attraction 
for which admission is charged, except for:
    (A) Athletic events of the Military Service academies;
    (B) Performances by aerial demonstration teams;
    (C) Concerts by the U.S. Army Band, the U.S. Army Field Band, the 
U.S. Navy Band, the U.S. Marine Band and the U.S. Air Force Band while 
on authorized tours.
    (iii) Consists wholly or in part of resources, facilities, or 
services which are otherwise reasonably available from commercial 
sources.
    (iv) Involves the use of military personnel (including members of 
Guard/Reserve components and ROTC in uniform) outside military 
reservations as ushers, guards, parking lot attendants, runners, 
messengers, baggage handlers, for crowd control, or in any other 
inappropriate capacity.
    (v) Interferes with military needs or operational requirements.



Sec. 238.7  Funding.

    (a) The cost of DoD support of community relations programs 
authorized in Sec. 238.7(b) shall be the responsibility of the DoD 
Component(s) involved. Funding requirements for these purposes shall be 
kept to the minimum necessary to accomplish DoD objectives.
    (b) DoD Components shall absorb the costs of supporting those 
community relations programs that are specifically authorized by public 
law, executive order, or the Secretary of Defense, and the following 
types of programs when they are in the primary interest of the 
Department of Defense:
    (1) Official Federal Government functions.
    (2) DoD or civic-sponsored observances of United States or host 
country national holidays.
    (3) Official civil ceremonies and functions.
    (4) Speaking engagements.
    (5) Events considered to be in the national interest or in the 
professional, scientific, or technical interests of a DoD Component or 
element, when approved by the Assistant Secretary of Defense (Public 
Affairs) or the Commander of an overseas Unified or Specified Command, 
as appropriate.
    (6) Direct support of recruiting and personnel procurement activity, 
when the cost of such support is charged to recruiting or personnel 
procurement programs funds.
    (c) DoD support of community relations programs that are not 
authorized in paragraph (b) of this section shall be at no additional 
cost to the Government.
    (d) To adhere to congressional funding limitations, due care must be 
exercised in the identification of costs of community relations 
programs. Programming, budgeting, and financing policies are set forth 
in part 237 of this title. In general, for purposes of the limitations, 
the incremental cost of any resource incurred solely for community 
relations purposes must be identified as a public affairs cost; and 
costs incurred by a DoD Component in connection with its support of a 
community relations program, which would not be incurred but for their 
public affairs aspects, must be identified as public affairs costs. 
Effective management of a community relations program may require full 
costing (total direct and indirect costs) of the use of resources when 
their use benefits or is caused by the program. This information shall 
be provided to management officials and the OASD(PA) on an ``as 
required'' basis.
    (e) When routine training flights are used as opportune airlift to 
transport military personnel, no reimbursement to the providing 
Component is required. When Military Airlift Command industrially funded 
transportation facilities are used, the industrial fund must be 
reimbursed, in accordance with DoD Directive 7410.4,\1\``Regulations 
Governing Industrial Fund Operations,'' September 25, 1972.
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 238.4(d).

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[[Page 507]]



Sec. 238.8  Responsibilities and authorities.

    (a) Requests for DoD support of community relations programs shall, 
except as otherwise specified in this Instruction, be evaluated and 
approved or disapproved at the lowest practicable echelon or command 
(see Sec. 238.5(a)(2)).
    (b) The Assistant Secretary of Defense (Public Affairs) is the sole 
authority for granting any exception to the policy contained in part 237 
of this title and in this part.
    (1) The ASD(PA) is the sole authority for approving all DoD support 
of community relations programs in the National Capital area (see Sec. 
238.11 and Sec. 238.13), except speaking engagements (see Sec. 
238.12), and for DoD support of the following programs outside that 
area:
    (2) National and international programs, including national 
conventions and meetings (except those programs taking place in overseas 
areas which are solely of internal concern to a Unified or Specified 
Commander); see Sec. Sec. 238.11, 13, 14, 15, 16, and 18.
    (3) Programs outside the 50 United States which are not within a 
Unified or Specified Command's area of responsibility.
    (4) Programs where the officially designated flight and parachute 
demonstration teams (Golden Knights, Blue Angels, Thunderbirds) perform, 
in accordance with Sec. 238.10.
    (5) Programs held on a military installation involving an aerial 
review of more than one Military Service, and programs involving any 
aerial review, flyover, or aircraft demonstration held elsewhere within 
the United States or as outlined in paragraph (b)(2) of this section 
(except for flyovers for civic-sponsored observances of and official 
ceremonies for Armed Forces Day, Memorial Day, Independence Day and 
Veterans Day, authorized by the Secretaries of the Military 
Departments), in accordance with Sec. 238.10.
    (6) Programs that require acting as the sole point of official 
contact within the Department of Defense for liaison between the 
Department of Defense and the headquarters and Washington offices of 
national organizations and other national non-Government groups, except 
for those organizations representing a specific interest of a single 
Military Service, e.g., Association of the U.S. Army, Air Force 
Association, Navy League, Marine Corps League, etc. (see paragraph (d) 
of this section).
    (7) Programs that provide information to national organizations, 
including business and industry groups, and call for approving support 
of the activities of such organizations and groups, in accordance with 
Sec. 238.13. (See part 237a of this title.)
    (c) The Unified and Specified Commanders, except as specified in 
Sec. 238.8(b), have been and are designated to act for and in behalf of 
the Secretary of Defense in implementing the provisions of part 237 of 
this title and this part in their overseas area of responsibility 
(excluding the States of Hawaii and Alaska).
    (d) The Secretaries of the Military Departments, except as specified 
in paragraph (b) of this section, are authorized to approve requests for 
DoD support of community relations programs, and to:
    (1) Approve the unofficial use of the official insignia of their 
Departments, except where such use is prohibited by law.
    (2) Conduct direct communication and liaison with organizations 
representing specific interests of their respective Military 
Departments. Military Departments which maintain liaison with such 
organizations are required to carry on their activities in accordance 
with the letter and the spirit of policies set forth in parts 237, 91, 
and 40 of this title, (respectively). ASD(PA) shall be responsible for 
monitoring the liaison activities between Military Departments and these 
organizations.
    (3) Delegate to local major unit commanders authority to support 
local programs jointly planned and conducted by border communities in 
California, Arizona, New Mexico, and Texas, with their counterparts in 
Mexico.
    (i) Local programs are defined as those which center on and are of 
primary interest in a U.S. or Mexican border community.
    (ii) Favorable determinations shall be based on the significance of 
the program, defense interest, advance consultation, and approval of 
appropriate

[[Page 508]]

U.S. consular officials, coordination with other Federal agencies, as 
required, and the concurrence of municipal authorities involved.
    (e) The Head of the Interservice Sports Committee shall act for the 
ASD(PA) in all matters pertaining to interservice competition and joint 
military Service participation in national and international sports. See 
Sec. 238.17.
    (f) The Assistant Secretary of Defense (International Security 
Affairs) (ASD(ISA)) shall coordinate DoD support of foreign disaster 
relief operations, in accordance with Sec. 238.19.
    (g) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) shall be responsible for certain miscellaneous public 
affairs-related activities, as specified in Sec. 238.19.



Sec. 238.9  Information requirements.

    (a) Records will be maintained and required reports furnished in 
accordance with Sec. 237.6 of this title.
    (b) The additional reporting requirement specified in Sec. 238.11 
has been assigned Report Control Symbol DDPA(M) 979.



Sec. 238.10  Armed Forces aerial demonstrations.

    (a) Purpose. (1) This part relates to Armed Forces aerial 
demonstrations in support of community relations programs, including 
flight team demonstrations, parachute team demonstrations, flyovers, 
aerial reviews, static displays and other aerial activities.
    (2) Attached to this enclosure is the approved DoD ``Request for 
Aerial Demonstration'' format.
    (b) Definitions. As used herein, the following definitions apply:
    (1) Aerial event. Any occasion such as an air show, festival, 
official Federal Government function, or official military and civic 
functions held on a military installation or elsewhere where an Armed 
Forces aerial demonstration is either a primary or incidental 
attraction.
    (2) Aerial demonstration. The use or display of DoD military 
aircraft or personnel in any aerial event, including the following:
    (i) Flight team demonstration. An exhibition of precision aerial 
maneuvers and techniques flown by an officially designated Service 
flight demonstration team, such as the U.S. Air Force Thunderbirds and 
the U.S. Navy Blue Angels.
    (ii) Parachute team demonstration. A demonstration of free-fall and 
precision-landing techniques by the officially designated unit, the U.S. 
Army Golden Knights. Other military parachute teams, including 
individuals or groups, may be specifically authorized for such 
demonstrations when representing the Department of Defense.
    (iii) Flyover. A straight and level flight by no more than four 
military aircraft from a Military Service over a predetermined point on 
the ground at a specific time and not involving aerobatics or 
demonstrations.
    (iv) Aerial review. A flyover of multiple types of aircraft or 
aircraft representing more than one Military Service with elements in 
trail formation and not involving precision maneuvers or demonstrations.
    (v) Static display. A ground display of aircraft and its related 
equipment not involving taxiing or starting of engines while spectators 
are in the display area.
    (vi) Aerial activities. All other aerial demonstrations, not listed 
in paragraphs (b)(2) (i) through (vi) of this section, designed to 
portray performance techniques by a single aircraft or group of aircraft 
or personnel. Such demonstrations include but are not limited to air-to-
air refueling, helicopter flight techniques, maximum performance take 
off, performance record demonstrations, mass parachute jumps, air 
delivery of equipment, assault aircraft demonstrations, tactical 
helicopter troop landings under simulated tactical conditions, air-
rescue demonstrations, and rappelling demonstrations.
    (c) Policy. (1) Armed Forces aerial demonstrations may be authorized 
at appropriate public programs, on a military installation, or elsewhere 
which meet basic criteria set forth in this Instruction. Support may 
include officially designated military flight or parachute demonstration 
teams, flyovers, aerial reviews, the static displays of aircraft, and 
other aerial activities.

[[Page 509]]

    (2) Any aerial demonstration will be entirely dependent upon the 
Military Services' capability to provide such resources at the time of 
an event.
    (3) All pertinent safety regulations of the Department of Defense 
and the Department of Transportation (Federal Aviation Agency) will be 
rigidly observed, and will take precedence over any or all conditions or 
circumstances.
    (4) Maximum advantage of Armed Forces recruiting will be taken at 
public events where Armed Forces aerial demonstrations have also been 
authorized.
    (5) During the hours aircraft are actually on display or providing 
demonstrations before the public, qualified Armed Forces personnel will 
be available to explain the missions performed and answer spectators' 
questions.
    (6) Armed Forces teams may not compete for prize monies. (See part 
237 of this title.)
    (7) Armed Forces aerial demonstrations are usually limited to 2 days 
in any one aerial event. However, parachute demonstrations may extend 
over a 3-day period. This provision may be waived when:
    (i) Other requests for the time frame have not been authorized.
    (ii) Extended participation does not compromise another event 
because of travel time.
    (iii) It is determined that the audience will change each day.
    (iv) The event is of national or international nature and 
participation would be in the best interests of the Department of 
Defense.
    (8) No two aerial demonstration teams of the same type will be 
approved for a single event. Flyovers may be authorized at an event 
where a flight or parachute demonstration team will perform, provided 
they are scheduled on days other than those authorized for the 
demonstration teams' performance. Static displays and other aerial 
activities may be authorized in conjunction with any other aerial 
participation.
    (9) Aircraft performance record demonstrations are restricted to 
aircraft which have been assigned to an operational unit of a Military 
Service for at least 6 months in demonstrations which imply no 
competition among the Military Services. They may be conducted 
periodically in the interest of keeping the public apprised of U.S. 
engineering-technical capabilities in the development of aircraft 
altitude, speed, endurance, and individual performance or record 
demonstrations.
    (d) Procedures. (1) All nonmilitary sponsors desiring Armed Forces 
aerial demonstrations should be requested to complete the approved DoD 
request format (Enclosure 1). This format may be reproduced and 
distributed by the Military Services.
    (2) The Department of Defense (OASD(PA)) will host a scheduling 
conference in mid-December each year to prepare the official flight and 
parachute demonstration team's performance schedules for the following 
year.
    (i) Nonmilitary sponsors desiring flight and/or parachute 
demonstration teams must submit an approved DoD request format 
(Enclosure 1) to ASD(PA) no later than September 30 to be considered for 
inclusion in the approved schedule for the following calendar year.
    (ii) Military Departments desiring flight or parachute demonstration 
team performances will consolidate their requests and forward them to 
ASD(PA) no later than November 15 to be considered for inclusion in the 
approved schedule for the following calendar year.
    (iii) Following the scheduling conference, a tentative schedule will 
be prepared by OASD(PA) and submitted to the Military Departments for 
review and concurrence prior to final approval by the ASD(PA). 
Precautions will be taken to ensure that sponsors are not provided any 
information concerning the status of their request until final approval 
and release of the schedule by ASD(PA). Exceptions to this policy may be 
made only with advance approval of the OASD(PA).
    (3) Nonmilitary sponsors desiring aerial demonstrations other than 
flight and parachute team demonstrations should be requested to submit 
an approved DoD request form (Enclosure 1) to OASD(PA) no later than 30 
days, and preferably 60 days, prior to the scheduled event.
    (4) DoD Components desiring to conduct aerial reviews involving more

[[Page 510]]

than one Military Service on a military installation, or aerial reviews, 
flyovers, and other aerial activities elsewhere (except as provided in 
Sec. 238.8(b)(4) of this part), will forward requests to ASD(PA) as 
soon as practicable and will include, as a minimum, those criteria 
contained in Sec. 238.5(a)(2), this part.
    (5) The Military Departments will forward requests for attempts to 
establish aircraft performance records and to release information 
relative thereto to the ASD(PA) at least 45 days prior to the date of 
the proposed attempt. Submissions will include a description of the 
specific aircraft to be used and full justification for the proposed 
record attempt, including supporting flight and information plans. 
ASD(PA) will coordinate the request within the Department of Defense and 
with other appropriate Government departments or agencies and the 
National Aeronautic Association of the United States of America.
    (e) Evaluation. Approvals or disapprovals of requests for aerial 
demonstrations will be based on the following:
    (1) Program criteria. (i) Public events which are appropriate for 
Armed Forces aerial demonstrations include such activities as 
dedications of airports and facilities, aviation shows, expositions and 
fairs, and civic events which contribute to the public knowledge of 
Armed Forces aviation equipment and capabilities.
    (ii) Aerial demonstrations may be authorized for military 
installations, including those leased by Reserve Components, in 
accordance with the guidance and direction provided by the ASD(PA) and 
the Secretaries of the Military Departments. Appearances by the flight 
and parachute demonstration teams on a military installation will only 
be approved in support of an official ``Open House'' program.
    (iii) To minimize interference with operations and training of Armed 
Forces aviation units, flyovers will be approved only for the following 
occasions.
    (A) Those events outlined in paragraphs (e)(1) (i) and (ii), above.
    (B) Civic-sponsored public observances of and official ceremonies 
for Armed Forces Day, Memorial Day, Independence Day, and Veterans Day.
    (C) Memorial or funeral services for dignitaries of the Armed Forces 
and the Federal Government, and for rated/designated aviation personnel 
of the Armed Forces as determined by appropriate Military Department 
regulations.
    (D) Ceremonies honoring foreign dignitaries, when directed by 
executive order or the Secretary of Defense.
    (E) Occasions primarily designed to encourage the advancement of 
aviation.
    (2) Sponsor criteria. See Sec. 238.6 (a)(2) and (b)(2).
    (3) Site criteria. (i) Sponsors are required to obtain a Federal 
Aviation Agency waiver for any public demonstration by military aircraft 
or parachutists. The final authorization for such aerial demonstrations 
hinges upon the sponsor securing this waiver far enough in advance to 
permit adequate planning (normally no later than 60 days prior to the 
event).
    (ii) Flight or parachute team demonstrations are restricted to 
appropriate events at airports, over open bodies of water, or over 
suitable open areas of land where crowd control can be ensured.
    (iii) Flight demonstration team aircraft must operate from suitable 
airfields or the site of the event must be within a reasonable distance 
of a staging base. In the latter case, performances are seldom 
authorized since the recruiting potential is significantly reduced.
    (iv) For any military aircraft to operate from an airport show site, 
all operational requirements concerning minimum usable runway lengths 
and load-bearing capacity must be met.
    (v) Mass parachute jumps, aerial delivery of equipment, assault 
aircraft demonstrations, or tactical helicopter troop landings under 
simulated tactical conditions will be limited to military installations. 
These activities, except those scheduled as part of regular training 
programs, are not authorized for public events.
    (4) Support criteria. (i) While the Department of Defense does not 
require the sponsor to provide the Department with a public liability 
and property

[[Page 511]]

damage insurance policy, this should not deter the sponsor from 
obtaining the insurance he/she feels is necessary for protection.
    (ii) Civilian sponsors will be responsible for providing the 
following:
    (A) The standard Military Services allowance for quarters and meals 
for Armed Forces participants, except for flyovers and other aerial 
activities not involving landing.
    (B) If necessary, transportation, meals, and hotel accommodations 
for representatives of the requested unit to visit the site prior to the 
event.
    (C) Transportation for Armed Forces participants between the site of 
the event and hotel and return. Additionally, if required, 
transportation from home station to the event and return.
    (D) Telephone facilities for necessary official communications 
regarding the event.
    (E) A recent aerial photograph, taken vertically from an altitude of 
5,000 feet or higher, to the team giving the demonstration.
    (F) Availability of suitable aircraft fuel at military contract 
prices. If fuel is not available at military contract prices, the 
sponsor must pay any costs over military contract prices, including 
transportation and handling.
    (G) An ambulance and a doctor on the site during flight and 
parachute team demonstrations and certain other aerial activities, as 
determined in advance by the Military Services or the OASD(PA).
    (H) Mobile firefighting, crash, and ground-to-air communications 
equipment at the demonstration site.
    (I) Security for aircraft that land and are parked at the site 
during their entire stay.
    (J) If necessary, aircraft for use as a jump platform by a parachute 
team at the location of the event.
    (f) Funding. (1) Aerial demonstrations at public events, except for 
flyovers, aerial reviews, and other aerial activities not involving 
landing, will be provided at no additional cost to the Government.
    (i) The sponsor is required to pay the standard per diem for 
quarters and meals, as prescribed in the Joint Travel Regulations, 
Volumes 1 and 2, and to provide adequate ground transportation between 
hotels and the site of the event and other necessary services, as 
determined by the participating Component and agreed to by the sponsor.
    (ii) The sponsor should make the check for the required amount 
payable to the DoD organization which incurred reimbursable expenses. 
Usually, this will be the DoD organization to which the demonstration 
team is assigned. The Defense representative who makes the arrangements 
for the demonstration will provide the sponsor with the name or other 
identity of the organization to be cited as payee on the check. The 
sponsor will present the check to the appropriate demonstration team or 
aircraft commander upon arrival at the scheduled event. The commander, 
in turn, will transmit the check, expeditiously, to the accounting and 
finance office that supports the payee's operations.
    (2) All costs are binding after a team or crew personnel have 
arrived at a show site, even though weather conditions or other 
unforeseen circumstances force the event to be canceled.
    (g) Responsibility and authority. (1) The Assistant Secretary of 
Defense (Public Affairs) shall approve Armed Forces aerial 
demonstrations in support of community relations programs, as follows:
    (i) All official flight team and parachute team demonstrations held 
on a military installation or elsewhere.
    (ii) Flyovers held off a military installation (except as provided 
in paragraph (g)(2)(ii), of this section).
    (iii) Aerial reviews involving more than one Military Service held 
on a military installation and all aerial reviews held elsewhere.
    (iv) Aerial demonstrations held outside the United States which are 
not within a Unified or Specified Command area of responsibility.
    (v) Other activities held off a military installation (except as 
provided in paragraph (g)(2)(v) of this section).
    (2) The Secretaries of the Military Departments are authorized to 
approve aerial demonstrations in support of community relations programs 
by aircraft of their respective Services, as follows:

[[Page 512]]

    (i) Flyovers for events on military installations.
    (ii) Flyovers at events off military installations for civic-
sponsored observances of Armed Forces Day, Memorial Day, Independence 
Day and Veterans Day (except in the National Capital area).
    (iii) Flyovers provided for military funerals for rated/designated 
aviation personnel of the Armed Forces.
    (iv) Static display of aircraft held on military installations or 
elsewhere.
    (v) Other aerial activities, as follows:
    (A) Those held on military installations.
    (B) Air-rescue demonstrations, team, or single parachute 
demonstrations (other than the U.S. Army Golden Knights), Navy Seal Team 
demonstrations, rappelling demonstrations, and air-to-air refueling 
demonstrations.



Sec. 238.11  Armed Forces bands, troops, and units in support of public 
programs.

    (a) Purpose and scope. This enclosure is intended for use when 
determining the appropriateness or extent of Armed Forces participation 
in official Federal Government, military, or civic functions and all 
other community relation programs conducted in public. It governs all 
uniformed Armed Forces commands, organizations, units, and personnel 
appearing in public, including bands, musical groups, individuals, color 
guards, drill teams, marching units, exhibits or displays, and the loan 
or use of Armed Forces facilities and material in support of community 
relations programs.
    (b) Policy. Armed Forces support of public programs has been 
developed by the Department of Defense to ensure compliance with public 
law, to ensure equitable distribution of resources to as many 
appropriate events as possible, and to avoid excessive disruption of 
training and operational missions of the Military Services. DoD support 
of public programs is authorized and encouraged when such support is in 
the best interest of the Department of Defense and the Armed Services. 
The Defense Establishment and the Armed Forces belong to the American 
people and thus the Department should not do for one segment of the 
society what it cannot do for all.
    (c) Procedures--(1) General. Requests for Armed Forces support of 
public programs shall be addressed to the nearest military installation, 
giving full details on the approved DoD request format (enclosure 2), so 
that a decision, based on program criteria, sponsor criteria, site 
criteria and support criteria can be made.
    (2) National/International programs. Requests for Armed Forces 
support for programs which, by their nature or because of news media 
coverage, could be of national or international interest will be 
forwarded through established command channels to the ASD(PA) for 
approval. Approval will be based upon program, sponsor, site, and 
support criteria listed above, or any recommendation or request for 
exception to policy by the appropriate commander.
    (3) Events in the National Capital area. All requests for Armed 
Forces support of public programs within the National Capital area will 
be sent to the ASD(PA) for approval. Requests for Military Service 
bands, musical units, drill teams, color guards, etc., stationed in the 
Washington, D.C. area, may be made by submitting the attached approved 
DoD request format through appropriate command channels.
    (4) Local events. Local military commanders may authorize support of 
purely local programs without further authorization from the Department 
of Defense. The program must be consistent with at least one condition 
of each of the established criteria groups in Sec. 238.6(a) and be 
consistent with resource capability, operational commitments and 
applicable regulations.
    (d) Evaluation. (1) When evaluating requests for Armed Forces 
support of public programs, the interests of the Department of Defense, 
the public at large, operational requirements of the Military Services, 
and availability of appropriate resources are prime considerations. (See 
Sec. 238.6 (a) and (b).) Commitment of resources to specific programs 
must be balanced with the governing factors and guidelines of the basic 
Instruction and with requests for similar participation received from

[[Page 513]]

other sources. DoD support, directly or indirectly, must not:
    (i) Endorse or benefit selectively or favor any private individual, 
group, corporation (whether for profit or nonprofit), sect, quasi-
religious or ideological movement, political organization, or commercial 
venture; or
    (ii) Be associated with the solicitation of votes in a political 
election. (See Sec. 238.6 (a) and (b).)

Such sites as commercial theaters, department stores, churches, or 
fraternal halls are, generally, inappropriate sites for Armed Forces 
support. Testimonials to individuals or sectarian religious services are 
inappropriate programs for Armed Forces support.
    (2) Support by the Armed Forces of any program may be authorized 
only if admission, seating, and all other accommodations and facilities 
are available to all without regard to race, creed, color, national 
origin, or sex.
    (i) Support of programs sponsored by certain organizations may be 
authorized when the program is oriented towards the community interests 
as opposed to the sectarian, fraternal, or national origin aspects or 
objectives of the organization.
    (ii) Participation in nonpublic school events is authorized when the 
program is clearly patriotic or educational in nature or is in support 
of recruiting programs.
    (iii) No admission charge may be levied on the public solely to see 
an Armed Forces demonstration, unit, or exhibit. When admission is 
charged, the Armed Forces activity must not be the sole or primary 
attraction. (Excludes Navy and Marine Corps Band Tours.)
    (3) The term ``fund-raising'' identifies the avowed or announced 
purpose of a program which, by any means, seeks to acquire money or 
material in excess of actual costs for charitable, civic, or other 
purpose. Support by the Armed Forces in an official capacity in fund-
raising programs is restricted to fund-raising activities in support of 
recognized united, federated, joint, or other authorized campaigns (see 
Sec. 238.6(a)(1)(v)). A required condition of such support will be that 
the sponsor of an event certifies that all profits accrued will be 
donated to a united, federated, or joint campaign. In view of the 
national interest, the Armed Forces may support sports or other public 
programs held for the sole purpose of raising funds for the U.S. teams 
competing in the Pan-American and Olympic Games. DoD policies concerning 
Armed Forces support of fund-raising programs are detailed in part 237 
of this title. Additional information may be found in DoD Directive 
5035.1.
    (4) When Armed Forces support of a public program is in the mutual 
interest of the Department of Defense and the sponsor, participation 
will be authorized at no additional cost to the Government. Additional 
costs to the Government--travel and transportation of military 
personnel, meals and quarters or the standard per diem allowance--must 
be borne by the sponsor.
    (5) The duration of support by military units in any single program 
is limited in the interests of proper utilization and equitable 
distribution of Armed Forces manpower and resources. While an exhibit 
may be scheduled for the duration of a program, participation of a unit 
such as a military band is limited to 3 days.
    (6) Armed Forces support of professional sports programs and all 
postseason bowl games will be authorized at no additional cost to the 
Government, will emphasize joint Service activity where praticable, and 
must support recruiting programs. Support of commercially oriented 
events, such as beauty pageants, Christmas parades, and motion picture 
premieres is not authorized.
    (7) Armed Forces musical units may be authorized to provide certain 
specified musical presentations for public programs. The performance 
must not place military musicians in competition with the customary or 
regular employment of local nonmilitary musicians. Background, dinner, 
dance, or other social music is not authorized for public programs held 
away from a military installation. Programs which may be authorized 
usually include a short (15-20 minute) patriotic presentation. Musical 
selections consist of a medley of military or patriotic songs, 
appropriate honors, and music to accompany

[[Page 514]]

the presentation of the colors by a color guard.
    (e) Exhibits. (1) Exhibits are both indoor and outdoor types. The 
Military Services maintain Armed Forces exhibits which are used in their 
individual public affairs programs. These exhibits are maintained by the 
Military Departments and are provided to sponsors of events at no 
additional cost to the Government.
    (2) Most exhibits are displayed during programmed tours which are 
scheduled 6 to 8 months in advance. Requests for these exhibits should 
be initiated well in advance of the event.
    (3) Requests for Armed Forces exhibits in support of public programs 
should be forwarded to one of the following addressees, using an 
approved DoD request format:

                                U.S. Army

Chief of Public Affairs, Department of the Army, Washington, D.C. 20310.

                                U.S. Navy

Chief of Information, Department of the Navy, Washington, D.C. 20350.

                             U.S. Air Force

Commander, USAF Orientation Group, Wright-Patterson AFB, Ohio 45433.

    (4) The exhibits used in support of personnel procurement and 
recruiting are governed by policy established by the Assistant Secretary 
of Defense (Manpower, Reserve Affairs, and Logistics).
    (f) Armed Forces personnel, facilities, and materiel--(1) General. 
(i) Armed Forces (including Guard/Reserve and ROTC) resources, such as 
bands, troops, drill teams, color guards, installations facilities, and 
materiel may be effectively used to support community relations 
programs.
    (ii) The use of military personnel as ushers, guards, parking lot 
attendants, runners, messengers, baggage handlers, crowd control, or 
other inappropriate capacities in support of public programs conducted 
off military installations is not authorized.
    (2) Flags. (i) The loan of official flags of DoD Components will not 
be authorized without the approval of the Secretaries of the Military 
Departments or Heads of the other Components concerned.
    (ii) In public programs for which DoD support has been authorized 
and at which the display of colors is appropriate, a Joint Armed Forces 
Color Guard will be employed, when available, using the following 
composition: Two Army bearers with National and Army colors; one each 
Marine Corps, Navy, Air Force, and Coast Guard \2\ bearer with 
individual Service colors; and one Army and one Marine Corps rifleman as 
escorts.
---------------------------------------------------------------------------

    \2\ Pursuant to agreement with the Secretary of Transportation.
---------------------------------------------------------------------------

    (iii) When a Joint Armed Forces Color Guard, as specified above, 
cannot be formed, the senior member of the senior Service in the Color 
Guard will carry the national colors. DoD Components will be guided by 
the table of precedence prescribed in DoD Directive 1005.8,\3\ ``Order 
of Precedence of Members of Armed Forces of the United States When in 
Formations,'' October 31, 1977.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 238.4(d).
---------------------------------------------------------------------------

    (iv) United States military personnel may carry flags of foreign 
nations in official civil ceremonies when an official of the nation 
concerned is present in an official capacity and the official is one for 
whom honors normally would be rendered. In all other public programs or 
ceremonies, United States military personnel in uniform and in an 
official capacity are not authorized to carry flags of foreign nations, 
veterans groups, or other nonmilitary organizations.
    (3) Loan of materiel and facilities--(i) Materiel. Equipment which 
formerly was available only from the military is now readily available 
from commercial sources. In considering requests for loan of military 
materiel, commanders must determine that similar materiel or facilities 
are not reasonably available from commercial sources before providing 
the support requested. This is particularly applicable to such items as 
communications, office, food-handling, and lighting equipment. Also 
included are construction, earth-moving, or other transportation and 
field equipment support. Other criteria to be considered are:

[[Page 515]]

    (A) The equipment must be locally available in the command, and its 
use for public affairs purposes must not be permitted to interfere with 
the military mission of the command.
    (B) The public affairs program for which loan support is requested 
must be one in which the command is actively participating and one 
within the scope of its community responsibilities.
    (ii) Facilities. Requests which do not fall within the discussion in 
this section shall be referred, with the DoD Component's 
recommendations, to the ASD(PA) for consideration. Further guidance is 
provided in Sec. 238.19.
    (g) State governors' inaugural ceremonies and parades--(1) General. 
Support by DoD Components is appropriate in public parades and in 
inaugural ceremonies subject to the availability of resources. To the 
greatest extent practicable, Armed Forces support should be joint in 
nature. In those cases where a Military Service desires to support an 
inaugural program but has no troops or resources stationed within that 
State, the circumstances should be reported to the ASD(PA). Bands, troop 
units, and equipment from outside the local area may be provided only if 
no additional cost to the Federal Government will be incurred.
    (2) Support considerations. (i) Support should be limited in size 
and scope, bearing in mind the potential demands that may be generated 
from State to State. Marching units with a combined strength of no more 
than one platoon from each Military Service and no more than one 
military band are recommended guidelines. The display of equipment and 
vehicles in parades is encouraged.
    (ii) It is recognized that the State National Guard may be ordered 
to State duty by appropriate State authority, although Federal funds are 
not made available. Such service and expenses involved are paid for by 
other than Federal funds. The governor of a State has the authority to 
utilize, at no expense to the Federal Government, national guard troop 
units as required in support of the inaugural parade and ceremonies.
    (iii) The duties to be performed by national guardsmen in uniform 
shall conform to the policies of the Secretary of Defense as set forth 
in part 237 of this title and this part. Use of military personnel as 
escorts, ushers, doormen, or drivers for nonmilitary guests or local 
dignitaries is not authorized.



Sec. 238.12  Speaking engagements.

    (a) Purpose. This part which includes a reiteration of pertinent 
policy statements from part 237 of this title, contains definitions, 
policy, procedural, and funding guidance concerning public speaking 
engagements by DoD personnel.
    (b) Definitions--(1) Speaking engagement. A prearranged official 
Federal, State, or Municipal government; organizational; or public event 
at which a military or civilian member of a DoD Component speaks about a 
DoD subject within his or her official cognizance. Impromptu remarks by 
an individual delivered incidentally and simply as a part of his/her 
attendance at an event does not constitute a speaking engagement within 
the meaning of this Instruction.
    (2) DoD Speaker. Any civilian or military member of the Department 
of Defense at any level and of any rank who speaks in public about a DoD 
subject within his/her official cognizance.
    (c) Policy. The Department of Defense encourages qualified civilian 
and military officials at all levels to accept speaking invitations as 
an effective means of informing the public about Defense matters. DoD 
Instruction 5230.13,\1\``Principles of Public Information,'' October 23, 
1973.
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 238.4(d).
---------------------------------------------------------------------------

    (d) Procedures--(1) General considerations. The following points 
should be considered by members of the Department of Defense prior to 
acceptance of a speaking invitation:
    (i) Participation must not interfere with assigned duties.
    (ii) Speakers must address their remarks to subjects within their 
official cognizance.
    (iii) Views expressed must not conflict with national policy.
    (iv) Speakers may not be provided for partisan political gatherings 
(see DoD Directive 1344.10,\1\ ``Political Activities

[[Page 516]]

by Members of the Armed Forces,'' September 23, 1969, or fund-raising 
events which do not meet basic DoD criteria (see part 237 of this title 
and DoD Directive 5035.1, respectively).
    (v) A speaker's participation must not lend an air of sponsorship to 
the statements of others which may be partisan in nature or contrary to 
national policy.
    (vi) Subject matter and text may require review and clearance (see 
DoD Directive 5230.9,\1\ ``Clearance of DoD Public Information,'' 
December 24, 1966).
    (vii) Situations where the real or apparent purpose is to stage 
controversy will be avoided. The ASD(PA) will be consulted before 
speakers are provided for events in which public confrontation or debate 
of national policy matters is planned or likely.
    (viii) Department of Defense support is not authorized if the 
sponsor or sponsoring organization specifically excludes any person from 
its membership for reasons of race, creed, color, or national origin. 
However, DoD support is authorized for programs sponsored by 
organizations whose qualifications for membership is based on national 
origin or sex, but only when the program so supported is oriented to the 
community rather than to the national origin or objective of the 
organization itself, and admission, seating, and all other 
accommodations and facilities connected with the program are available 
to all without regard to race, creed, color, national origin, or sex.
    (ix) Acceptance of press, radio, and television interviews in 
conjunction with speaking engagements is encouraged, subject to the 
provisions of this Instruction and other pertinent public affairs 
Directives.
    (x) Advance distribution of copies of speech texts (embargoed when 
necessary) may be used to gain wider dissemination of DoD information 
beyond an intended local audience when media coverage is anticipated. 
Distribution of speech texts should be made in cooperation with the host 
organization.
    (2) Level of acceptance. Organizations or groups wishing to extend a 
speaking invitation should be encouraged to correspond directly with the 
Public Affairs Officer of the nearest installation likely to have 
someone assigned who is cognizant of the subject matter to be discussed. 
The Fact Sheet (enclosure 3) and Speaker Request Formats (enclosure 4) 
may be utilized when replying to queries concerning speakers. DoD 
Components shall channel speaking invitations to appropriate officials 
nearest the site of the event.
    (3) Presidential representatives. The Department of Defense is 
sometimes required to furnish a military officer to represent the 
President of the United States at occasions where ``remarks'' or ``an 
address'' are required. The minimum appropriate grade, in this 
circumstance, is a general or flag officer unless there are overriding 
practical considerations precluding general or flag officer 
availability.
    (e) Funding. (1) Speaking engagements normally will be at Government 
expense.
    (2) Acceptance of a gratuity as defined in part 40 of this title, a 
fee, or an honorarium is prohibited. Reimbursement for necessary travel 
and living costs may be accepted from the sponsoring organization in 
lieu of reimbursement by the Government, in accordance with Joint Travel 
Regulations (Volumes 1 and 2). Consult the local finance or disbursing 
officer for specifics.
    (f) Reports. (1) The Office of the Assistant Secretary of Defense 
(Public Affairs) requires a monthly speakers' report covering a 
projected 60-day period for all accepted speaking engagements of senior 
civilian and military representatives of the DoD Components down through 
Deputy Assistant Secretary and three-star rank. This report is due no 
later than the 24th day of each month, attention Directorate for 
Community Relations. The report will include the following information:
    (i) Name, rank, and title of speakers
    (ii) Date of speaking engagement
    (iii) Place of speaking engagement
    (iv) Host organization
    (2) This reporting requirement has been assigned Report Control 
Symbol DD-PA(M)979.
    (3) From the above information, the Directorate for Community 
Relations, Office of the Assistant Secretary of Defense (Public 
Affairs), will publish a monthly speakers' schedule.

[[Page 517]]



Sec. 238.13  National organizations.

    (a) Policy. OASD(PA) serves as the primary point of contact within 
the Department of Defense for all types of national organizations. In 
addition, on matters relating to the provision of information of DoD 
policies, programs, budgets, plans, and activities, OASD(PA) is the 
principal point of contact with business and industry. Establishment of 
this focal point is designed to avoid duplication and ensure that a 
coordinated DoD view is expressed when responding to the nontechnical 
needs of these organizations and the business/industrial community.
    (b) Procedures. (1) OASD(PA) serves as the principal Department of 
Defense point of contact for all national organizations (to include 
their local and regional chapters in the National Capital area) on all 
matters except:
    (i) Requests for information emanating from an organization and 
bearing directly on an individual DoD Component.
    (ii) Requests for speakers.
    (iii) Those matters involving contractual or consulting 
relationships.
    (iv) Matters pertaining to scientific and technical information. 
Scientific and technical information services are administered by the 
Defense Logistics Agency.
    (2) Except in the National Capital area, local and regional chapters 
of national organizations may deal directly with local commanders as 
delegated by appropriate authority. In the National Capital area, local 
and regional chapters shall be referred to OASD(PA) when they request 
support from the Department of Defense or any of its elements. When 
appropriate, OASD(PA) will refer the matter to whatever DoD Component 
can best fulfill the organization's request.
    (3) Authority for direct communication and liaison with 
organizations directly associated with specific interests of a single 
DoD Component is delegated (see Sec. 238.8(d)(2) of this part) to that 
Component. Individual Components which maintain liaison with such 
organizations are required to carry on their activities in accordance 
with the letter and the spirit of policies set forth in parts 237, 91, 
and 40 of this title, respectively).
    (4) OASD(PA) periodically provides to national organizations 
information concerning policies, programs, budg- ets, and other 
activities of the Department of Defense. DoD Components are encouraged 
to provide informative material to OASD(PA) for inclusion in these 
periodic mailings. Examples of Component-related material which would be 
proper for distribution to organizations through OASD(PA) include 
posture statements, significant congressional testimony, internal 
publications outlining important programs which will have a wide-ranging 
impact, and other major policy pronouncements such as speeches.
    (5) Policies regarding liaison and communication with the support 
for organizations representing business or commercial interests are 
outlined in part 237a of this title which also covers relationships with 
businesses, industries, and other commercial enterprises.



Sec. 238.14  Armed Forces Day.

    (a) Purposes. This enclosure contains guidelines concerning the 
annual observance of Armed Forces Day. (See part 237 of this title.)
    (b) Policy. (1) By Presidential proclamation, Armed Forces Day is 
observed on the third Saturday of each May. It provides a special 
occasion to satisfy public interest in the Defense establishment and to 
demonstrate the unity and common purpose of the Armed Forces in the 
fulfillment of our national security requirements.
    (2) In keeping with the spirit of unification as set forth in the 
National Security Act of 1947, as amended, participation by military 
units in the observance of the birthdays of individual DoD Components or 
any other day or days of significance to a single Component, its 
subordinate elements, or auxiliaries will not be undertaken away from 
military installations without the specific authorization of the 
Assistant Secretary of Defense (Public Affairs).
    (3) The United States Coast Guard is included, where feasible, in 
observances of Armed Forces Day, pursuant to agreement with the 
Secretary of Transporation.

[[Page 518]]

    (c) Procedures. (1) The Assistant Secretary of Defense (Public 
Affairs) is responsible for coordinating Armed Forces Day programs at 
the national level and for issuing annual guidance for the conduct of 
each year's observance.
    (2) Cooperation with communities and organizations planning 
observances of Armed Forces Day is encouraged.
    (3) DoD Components shall extend hospitality to the general public by 
hosting ``Open House'' or similar activities on military installations 
and ships.
    (4) In localities and situations where two or more Military Services 
are represented, joint participation in community sponsored programs is 
encouraged.
    (5) Armed Forces Day will be treated as a national holiday for 
purposes of determining support authorized by part 237 of this title and 
this part.
    (6) Armed Forces Day will be observed in overseas areas in the 
manner determined most suitable by the Commander-in-Chief of the Unified 
or Specified Command concerned. The observance may be held on military 
installations for U.S. personnel and dependents and may be open to the 
general public or conducted elsewhere in the host nation. These 
observances will not be combined with other U.S. or foreign holidays or 
observances.
    (d) Funding. DoD Components shall, within their available funds, 
defray the expenses necessay for the observance of Armed Forces Day 
within their respective areas of responsibility.



Sec. 238.15  Veterans Day observances and national conventions of national 
veterans organizations.

    (a) Policy. It is DoD policy to provide military support for:
    (1) Veterans Day observances at communities designated as regional 
sites by the Veterans Day National Committee of the U.S. Veterans 
Administration;
    (2) Smaller local observances held in communities not so designated; 
and
    (3) National conventions of national veterans organizations.
    (b) Procedures--(1) Veterans Day observances. (i) The Administrator 
of Veterans Affairs is normally designated by Presidential proclamation 
as the Chairman, Veterans Day National Committee. The objective of this 
committee, comprised of representatives from major veterans 
organizations, is to stimulate and perpetuate national public interest 
in honoring all veterans of all wars on Veterans Day. Each year, this 
committee designates certain communities as regional sites for the 
observances of this national holiday. Department of Defense supports 
these observances by appointing a DoD Coordinator and approving military 
support.
    (ii) Regional sites are designated to ensure that proper priority 
and an appropriate level of support are available for these major 
observances.
    (2) National Veterans organizations conventions. Each year the 
national veterans organizations request military support for their 
national conventions. The support requested varies with each 
organization. At conventions with multi-Service support, a DoD 
Coordinator will be assigned by OASD/PA; while at smaller conventions, 
one Service project officer may coordinate appropriate Armed Forces 
support.



Sec. 238.16  Presidential wreath-laying ceremonies.

    (a) General. Over the course of years the Office of The Military 
Assistant to the President has coordinated the annual placement of 
Presidential Wreaths at the tombs, burial sites, and/or monuments of all 
former Presidents. The repeated placement of these wreaths through the 
years led to the development of the ``President's Approved Wreath List'' 
(Enclosure 5).
    (b) Procedures. (1) Enclosure 5 contains the President's Approved 
Wreath List, including name, place, and date for wreath-laying 
ceremonies for each former President.
    (2) Enclosure 5 also contains a list of Military Departments 
responsible for providing a representative of the President to place 
each wreath.
    (3) The minimum appropriate military grade for this program is 
general or flag rank, unless overriding considerations preclude the 
availability of a general or flag officer.

[[Page 519]]

    (c) Responsibilities. (1) The ASD(PA) is responsible for overall 
coordination of DoD support for this program.
    (2) Secretaries of the Military Departments will designate 
appropriate Presidential representatives, in accordance with the listing 
contained in enclosure 5, to place wreaths in honor of former 
Presidents. The name, rank, title, address, and telephone number of each 
designated representative will be forwarded to the ASD(PA) at least 60 
days in advance of the month of wreath placement.
    (3) The Military Assistant to the President will make necessary 
arrangements to provide each wreath.
    (4) Names of designated Presidential representatives will be 
forwarded, via the Special Assistant to the Secretary of Defense, to the 
Military Assistant to the President, who will coordinate final details 
of each ceremony.
    (d) Reports. The report required in Sec. 238.16(c)(2) is assigned 
Report Control Symbol DD-PA(AR)1348.



Sec. 238.17  Sports activities.

    (a) Policy. (1) DoD Directive 1330.4 establishes the Interservice 
Sports Committee (ISC) which acts for the ASD(PA) in all matters 
pertaining to interservice competition and joint Military Service 
participation in national and international sports. Each Military 
Service is represented on the committee.
    (2) Athletic activities of the Military Service academies that are 
conducted away from military installations shall be governed by the 
general policy contained in part 237 of this title and this part.
    (b) Responsibilities. Among other functions, the ISC as Executive 
Agent, for the DoD shall:
    (1) Act for the Department of Defense on matters pertaining to 
sports involving more than one Military Service.
    (2) Plan and conduct all interservice sports championships, and 
establish and monitor all joint Military Service efforts in support of 
national and international sports activities.
    (3) Coordinate with Department of State, as required by part 347 of 
this title, and other Government agencies and national sports 
organizations on sports tours and clinics in foreign countries which 
propose to utilize U.S. military personnel.
    (4) Provide representation for the Department of Defense on related 
Government committees.
    (5) Coordinate and maintain liaison with national sports governing 
bodies in matters of mutual interest to the Military Departments.
    (6) Secure Department of State approval for military participation 
in international sports competition, and monitor military sports 
programs to ensure compliance with the provisions of part 237 of this 
title.
    (7) Serve as a contact point for the entire Defense establishment on 
questions pertaining to sports.



Sec. 238.18  DoD coordinators.

    (a) Purpose. Some community relations programs involve support by 
more than one Military Service. Events of this nature include major 
national veterans conventions, regional Veterans Day observances, major 
air shows, large civic festivals, inaugurals, etc. The purpose of this 
enclosure is to provide guidelines for the coordination of such 
programs.
    (b) Procedures. (1) When military support of a program sponsored by 
a civilian organization is furnished by more than one Military Service, 
and the magnitude of the support warrants DoD coordination, one Military 
Department will be requested by OASD(PA) to nominate an officer located 
in the area of the program to serve as the coordinator of DoD support.
    (2) After being nominated, the officer will be designated as the DoD 
Coordinator by OASD(PA). The DoD Coordinator will be responsible for 
coordinating all military support, including support by National Guard/
Reserve components, within the limitations set forth in part 237 of this 
title, this part, and other specific guidelines prepared by OASD(PA) and 
provided to him/her upon designation as DoD Coordinator. The DoD 
Coordinator is authorized direct liaison with OASD(PA).
    (3) Also, OASD(PA) will request appointment of project officers, 
normally located within the area of the event, from the Military 
Departments providing support for the program. These

[[Page 520]]

Service project officers will assist the DoD Coordinator.
    (c) Reports. The DoD Coordinator will prepare an after-action report 
and forward it to OASD(PA) within 30 days following the program. Report 
Control Symbol DD-PA(AR)1348 applies.



Sec. 238.19  Miscellaneous public affairs-related activities.

    This part contains a list of Public Affairs-related activities 
conducted by certain DoD Components under authority other than that 
delegated to the ASD(PA).
    (a) Employment of military resources in natural disaster emergencies 
within the U.S., its territories and possessions. (1) DoD Directive 
3025.1,\1\ ``Employment of Military Resources in Natural Disaster 
Emergencies Within the United States, Its Territories and Possessions,'' 
August 30, 1971, governs.
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 238.4(d).
---------------------------------------------------------------------------

    (2) The Secretary of the Army is designated as the DoD Executive 
Agent for military support in disasters.
    (3) The ASD(PA) is responsible for associated public affairs 
activities.
    (b) Foreign disaster relief operations. (1) DoD Directive 
5100.46,\1\ ``Foreign Disaster Relief,'' December 4, 1975, governs.
    (2) The ASD(ISA) is responsible for overall coordination of DoD 
support.
    (3) The ASD(PA) is responsible for public affairs plans and 
activities. He is the single point of contact with the Department of 
State/AID or the International Communications Agency (ICA) on associated 
public affairs matters.
    (c) Use of DoD facilities or resources for other than public affairs 
purposes. (1) The use of any DoD facility or resource to accomplish a 
community relations objective (see part 237 of this title) is considered 
use for a public affairs purpose. Any other use of a DoD facility or 
resource is not a public affairs matter.
    (2) Policies and procedures governing the use of DoD facilities or 
resources for other than public affairs purposes are the responsibility 
of the ASD(MRA&L), the Secretaries of the Military Departments, or the 
Directors/Commanders of other DoD Components.
    (d) Transportation. (1) Policy governing the use of military 
carriers for public affairs purposes is contained in DoD Instruction 
5435.2.
    (2) Travel or transportation for public affairs purposes is defined 
as any travel or transportation of individuals, groups, or materiel 
undertaken as a result of a request to or an invitation from and 
authorized by competent authority in the Department of Defense in the 
interest of adding to the public understanding of DoD activities. It 
includes travel or transportation involving individuals or things, 
military or civilian, Government or non-Government, U.S. or foreign 
requests. It may be reimbursable.
    (3) All other uses of military carriers are governed by policies 
promulgated by the ASD(MRA&L).
    (e) Organizational relationships. Direct liaison channels exist 
between certain organizations and OSD agencies other than OASD(PA) in 
cases specifically provided for under public law or DoD Directive. 
Examples are:
    (1) United Service Organization--ASD(MRA&L)--DoD Directive 
1330.12,\1\ ``United Service Organizations, Inc.'' April 4, 1979.
    (2) American National Red Cross--ASD(MRA&L)--DoD Directive 
1330.5,\1\ ``American National Red Cross,'' August 16, 1969.
    (3) Boy Scouts of America and Girl Scouts of America. (i) 
Nonappropriated fund activities--ASD(MRA&L).
    (ii) Where authorized, priorities for travel on military carriers--
ASD(MRA&L)--DoD Regulation 4515.13-R,\1\ ``Air Transportation 
Eligibility,'' February 1975.
    (iii) Use of military transportation and facilities to include 
support for International and National Jamborees--ASD(MRA&L).
    (4) United Seamen's Service--ASD(MRA&L)--DoD Directive 
1330.16,\1\``United Seamen's Service (USS),'' July 10, 1971.
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 238.4(d).
---------------------------------------------------------------------------

    (5) Veterans Organizations (i) Service Discharge matters--
ASD(MRA&L); Military Departments.
    (ii) Donation of Surplus Equipment--ASD(MRA&L) DoD Manual 4160.21-
M,\1\ ``Defense Disposal Manual,'' June 1973.

[[Page 521]]

    Enclosure 1 to Part 238--Format Request for Aerial Demonstration

    This format is used to request Armed Forces aerial demonstrations at 
public events. The information is required to evaluate the event for 
appropriateness and compliance with DoD policies and for coordination 
with units involved. Please complete all sections.
    Each year, in December, the Department of Defense hosts a flight and 
parachute demonstration team scheduling conference to prepare the annual 
schedule for the following calendar year for the U.S. Navy Blue Angels, 
the U.S. Air Force Thunderbirds, and the U.S. Army Golden Knights. All 
requests for these demonstration teams must arrive at the Office of the 
Assistant Secretary of Defense, Public Affairs (OASD/PA), no later than 
September 30, to be considered at the scheduling conference. Requests 
for other aerial demonstrations (flyovers, static displays, etc.) must 
arrive at OASD(PA) a minimum of 30 days in advance of the event and 
preferably 60 days.
    DoD policies require that aerial demonstrations at public events 
will be provided at no additional cost to the Government. The sponsor is 
required to pay the standard Military Services allowance for quarters 
and meals for Armed Forces participants and for certain other services 
determined in advance by the Military Services and agreed to by the 
sponsor. All costs are binding after a team or crew personnel have 
arrived at a show site, even though weather conditions or other 
unforeseen circumstances force the event to be canceled.

                           Section A: General

    1. Title of event:
________________________________________________________________________
    2. Town or city: -------- State: --------
    3. Place (airport, fairgrounds, etc.):
________________________________________________________________________
    4. Inclusive dates of event:
________________________________________________________________________
    5. Sponsoring organization:
________________________________________________________________________
    6. This request is for: (please circle the appropriate event):
    a. U.S. Navy Blue Angels
Performance Dates_______________________________________________________
    OR
    U.S. Air Force Thunderbirds
(or)____________________________________________________________________
    (The standard Military Services allowance for quarters and meals for 
either team will cost $2,100.00 for each day a team is scheduled at your 
event.)
(or) Alternate Dates____________________________________________________
    b. U.S. Army Golden Knights
Performance Dates_______________________________________________________
(or)____________________________________________________________________
    (The cost will vary dependent upon travel time to and from the 
demonstration site, and the number of participants. See note at bottom 
of this page for detailed explanation of how costs are computed.)
(or) Alternate Dates____________________________________________________
    c. Aircraft Flyovers
Performance Dates_______________________________________________________
    (No cost to sponsor)
    d. Static Display
Performance Dates_______________________________________________________
    (The standard Military Services allowance for quarters and meals is 
$35.00 per day per crewmember.)
e. Other:_______________________________________________________________
Performance Dates_______________________________________________________
    Note: U.S. Army Golden Knights: Under normal conditions, the team is 
composed of nine jumpers, three aircraft crewmen, a ground controller, a 
narrator and information specialist. They are reimbursed by the 
Government at an average cost of $30.00 per individual per 24-hour day, 
for each performance day required to support your event (average team 
cost per performance day: 15 personnel x $30 = $450.00). Travel day 
reimbursement required to support your event is normally an average of 
$15.00 per individual per day, for each day of travel to and from Fort 
Bragg, North Carolina (average team cost per travel day: 15 personnel x 
$15 = $225.00). The sponsor will be advised by the Golden Knights, in 
advance, of the exact cost which the Government must be reimbursed.

                           Section B: Program

    1. Purpose of this event:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    2. Expected attendance: ----------
Previous year's attendance: ----------
    3. Admission charge: $------
Charge for parking: $------
    Charge for seating (if not included in admission charge): $------
    a. Will prize monies be given for any purpose at this event? ------
    b. Source of prize monies: ----------
    c. Is this event used to promote funds for any purpose? ----------
    d. Disposition of profits which may accrue: ----------
    4. Will admission, seating and all other accommodations and 
facilities connected with this event be available to all persons without 
regard to race, creed, color, sex, or national origin?--------
    5. Will sponsor consult with local Military Service recruiters and 
support, at no charge, military recruiting activities at the site of the 
event? --------
    6. This event (is) (is not) a civic occasion and (does) (does not) 
have the official backing of the Mayor.
    7. Has a demonstration team ever performed at your event before? --
------
a. Which team?__________________________________________________________

[[Page 522]]

b. Year of last performance:____________________________________________

                             Section C: Site

    1. Flight or parachute team demonstrations are restricted to 
appropriate events at airports, over open bodies of water, or over 
suitable open areas of land.
    a. Specific location of event:
________________________________________________________________________
    b. Length of active runway:

________________________________________________________________________
    2. Flight and parachute team demonstrations must adhere to FAA 
regulations which specify that spectators are not to be permitted within 
1,500 feet of an area over which flight demonstrations take place, or 
within 250 feet of a jump area over which parachutists are performing.
    a. What type of crowd control is planned?
________________________________________________________________________
________________________________________________________________________
    3. Flyovers and flight and parachute team demonstrations require 
that sponsors secure FAA clearance or waiver.
    a. Does the FAA representative in your area agree that your aviation 
event is feasible for the type of Armed Forces aerial demonstrations 
requested? ----------
    b. Will sponsor secure FAA clearance or waiver at least 60 days 
prior to event? ----------
    4. Sponsor agrees to provide to the demonstration flight or 
parachute team commander, upon request, a recent aerial photograph, 
taken vertically from an altitude of at least 5,000 feet.

                           Section D: Support

    Indicate that the sponsor understands and will provide the 
following:
    1. Team costs as outlined in section A:
________________________________________________________________________
    2. The standard Military Services allowance for quarters and meals 
for Armed Forces participants (if not included in team costs):
________________________________________________________________________
    3. If required, transportation, meals, and hotel accommodation cost 
for representatives of the requested unit to visit the site prior to the 
event:
________________________________________________________________________
    4. If required, transportation costs from home station to the event 
and return for all participants:
________________________________________________________________________
    5. Transportation costs for all participants between site of the 
event and hotel:
________________________________________________________________________
    6. Telephone facilities for necessary official communications at the 
site of the event:
________________________________________________________________________
    7. Security for aircraft that land and are parked at the site during 
their entire stay:
________________________________________________________________________
    8. Mobile firefighting, crash, and ground-to/air communications 
equipment at the demonstration site for flight and parachute 
demonstrations and static display aircraft:
________________________________________________________________________
    9. Suitable aircraft fuel at military contract prices. (Sponsor must 
pay all costs, including transportation and handling, if necessary, over 
military contract prices if fuel is not available at such prices):
________________________________________________________________________
    10. An ambulance and doctor on the site during flight and parachute 
demonstrations and during certain other types of aerial activities as 
determined in advance by the Military Services or OASD(PA):
________________________________________________________________________

                           Section E: Sponsor

    1. Sponsor (is) (is not) a civic organization.
    2. The sponsoring organization (does) (does not) specifically 
exclude any person from its membership based on race, creed, color, or 
national origin.
    3. Sponsor's Representative: (Authorized to complete arrangements 
for Armed Forces aerial demonstrations and responsible for reimbursing 
the U.S. Government for accrued expenses when required)
Name:___________________________________________________________________
Address:________________________________________________________________
City:--------State:----Zip:----
    Position with sponsoring organization:
________________________________________________________________________
Telephone: Office: ( )__________________________________________________
Home: ( )_______________________________________________________________
    4. Name and address of any Armed Forces representative or Government 
official with whom you have discussed possible participation:
________________________________________________________________________
________________________________________________________________________

                              Certification

    I certify that the information provided in sections A. through E. is 
complete and correct to the best of my knowledge and belief. I 
understand that representatives of the Military Services will contact me 
to discuss arrangements and costs involved prior to final commitments.
Signature:______________________________________________________________
(Sponsor's representative)______________________________________________
Date of Request:________________________________________________________
    Mail to: Directorate for Community Relations, OASD(PA), Room 1E 776, 
The Pentagon, Washington, DC 20301.

[[Page 523]]

 Enclosure 2 to Part 238--Request Format--Armed Forces Participation in 
                              Public Events

    This format is used to request all Armed Forces Band, Troop, and 
Exhibit participation in public events. The information is required to 
evaluate the event for appropriateness and compliance with DoD policies 
and for coordination with the units involved. Complete section A and 
only those other sections that apply to your event.

                           Section A: General

 1. Title of event:_____________________________________________________
 Town or City: ------ State: ------_____________________________________
    Date: ------ Time----from: ---- to: ----
    Place: (Auditorium, convention hall, etc.)
________________________________________________________________________
 2. Sponsor:____________________________________________________________
    3. The sponsor (is) (is not) a civic organization and the event 
(has) (does not have) the official backing of the mayor.
    4. The sponsoring organization (does) (does not) exclude any person 
from its membership or practice any form of discrimination in its 
functions based on race, creed, color, or national origin.
    5. Sponsor's representative authorized to complete arrangements for 
Armed Forces participation:
 Name:__________________________________________________________________
 Address:_______________________________________________________________
    City, State: ---------- Zip: ----
    Telephone: (Office) ( ) ------ (Home) ( ) ------
    6. Purpose of this event (explain fully):
________________________________________________________________________
 7. Expected attendance:________________________________________________
    8. Is this event being used to raise funds for any purpose?
________________________________________________________________________
 9. Admission charge:___________________________________________________
 Charge for seating:____________________________________________________
    10. Disposition of profits which may accrue:
________________________________________________________________________
    11. Will admission, seating, and all other accommodations and 
facilities connected with the event be available to all persons without 
regard to race, creed, color, sex, or national origin?
________________________________________________________________________
    12. Will the standard Military Services allowance for quarters and 
meals be provided by the sponsor for Armed Forces participants?
________________________________________________________________________
    13. Will transportation at sponsor's expense be provided for Armed 
Forces participants between the site of the event and hotel?

________________________________________________________________________
If required, will transportation be provided from home station to the 
          event and return?
________________________________________________________________________
    14. Will telephone facilities, at sponsor's expense, be made 
available for necessary official communications regarding the event?
________________________________________________________________________
    15. It may be necessary for representatives of the requested unit to 
visit the site prior to the event. Will transportation, meals, and hotel 
accommodations be provided by the sponsor?
________________________________________________________________________

                       Section B: Bands and Troops

    1. This request is for (check appropriate line(s)):
 Music:_________________________________________________________________
 Troops:________________________________________________________________
 Other:_________________________________________________________________
    2. If you desire a certain musical unit, troop unit, or type of 
equipment, please specify:
________________________________________________________________________
    Note: Standard Military Service allowances for quarters and meals--
$35.00 per day per person. Bands will have approximately 50 members as a 
minimum.
    3. If a musical unit is requested and an outdoor concert is planned, 
will there be a bandshell or bandstand?
________________________________________________________________________
    4. Type of electric current available:
110V ---- 220V ---- Amps ----              

                           Section C: Exhibits

    1. Specify type of exhibit(s) desired:
________________________________________________________________________
    2. If the event is indoors:
    Area available for exhibit is ---- feet long and ---- feet wide; 
Ceiling height: ----; Type of floor (wood, concrete) ----; Floor loading 
capacity: ----; Electric current 110V ---- 220V ---- Amps ----; Size of 
doorway through which exhibit can be brought into building: ---- feet 
high; ---- feet wide. Size and load limits of freight elevators if event 
is on other than ground floor: ---- feet wide; ---- feet high; ---- feet 
deep; load limit: ----.
    3. If the event is outdoors:
    Area available for exhibit is ---- feet long and ---- feet wide; 
Type of surface (sod, paved, gravel) ----; Type of electric current 
available: 110V ---- 220V ---- Amps ----; Obstructions to hinder 
unloading (high curbs, wires, trees):
________________________________________________________________________
    4. Can forklift, C-2 wrecker or crane be made available for handling 
exhibits at no additional cost to the Government?
________________________________________________________________________
    5. Will electric power, necessary services for connections, and 
other required utilities be provided by the sponsor?
________________________________________________________________________
    6. Will police escorts through congested areas be required?
________________________________________________________________________
    7. Will guards be provided for equipment and displays?

[[Page 524]]

________________________________________________________________________
    8. Is parking space available for tractors and trailers?
________________________________________________________________________
    9. Name and address of any Armed Forces representative or Government 
official with whom you have discussed possible participation:
________________________________________________________________________
________________________________________________________________________

                              Certification

    I certify that the information I have provided here is complete and 
correct to the best of my knowledge and belief. I understand that 
representatives of the Military Services will contact me to discuss 
arrangements and costs involved prior to final commitments.
Signature: (Sponsor's Representative)
________________________________________________________________________
Date of Request:________________________________________________________
________________________________________________________________________
    Return this request to:
________________________________________________________________________

                   Enclosure 3 to Part 238--Fact Sheet

                (Speaking Engagements by DoD Personnel.)

    1. The Department of Defense encourages qualified civilian and 
military officials at all levels to accept speaking invitations as an 
effective means of informing the public about Defense matters by 
developing understanding and stimulating patriotic spirit.
    2. DoD personnel may accept speaking invitations provided they 
adhere to the following guidelines:
    a. Participation must not interfere with assigned duties.
    b. Speakers must address their remarks to subjects within their 
official cognizance.
    c. Views expressed reflect national policy.

    Note This requirement exists so that Government employees, when 
discussing Government business, may accurately explain official policy.

    d. Speakers may not participate in partisan political gatherings.
    e. DoD speaker participation in fund-raising efforts will be limited 
to the programs of the Combined Federal Campaign, to such appeals as the 
President may authorize, and to the Military Service aid societies. 
Note: Support for local fund-raising programs other than those described 
above is authorized only when the fund-raising program, is, in fact, 
local in nature and is of community-wide interest and benefit.
    f. Their participation must not lend an air of sponsorship to the 
statements of others which may be partisan in nature and/or contrary to 
national policy.
    g. Situations where the real or apparent purpose is to stage 
controversy will be avoided.
    h. Speakers may not accept invitations when the sponsor or 
sponsoring organization specifically excludes any person from its 
membership for reasons of race, creed, color, or national origin. 
However, DoD support is authorized for programs sponsored by 
organizations whose qualifications for membership is based on national 
origin or sex when the program so supported is oriented to the community 
rather than to the national origin or sex-oriented aspects or objectives 
of the organization itself; and when admission, seating, and all other 
accommodations and facilities connected with the program are available 
to all without regard to race, creed, color, national origin, or sex.
    i. Speakers may not accept gratuities, fees, or honoraria. 
Reimbursement for necessary travel and living costs may be accepted in 
lieu of reimbursement by the Government.
    3. Speaking invitations should be directed to the Public Affairs 
Officer of the nearest military installation. The Public Affairs Officer 
would appreciate information of the type outlined on the enclosed 
speaker request form.
    4. Inquiries may also be addressed to Director for Community 
Relations, Office of the Assistant Secretary of Defense (Public 
Affairs), The Pentagon, Washington, D.C. 20301.

             Enclosure 4 to Part 238--Speaker Request Format

                      I. Sponsoring Organization(s)

Name(s)_________________________________________________________________
Person to contact relative to this request (Name, address & telephone 
number)_________________________________________________________________

                               II. Meeting

    Time:
Date____________________________________________________________________
Meeting will begin at___________________________________________________
Meeting will end at_____________________________________________________
    Place:
City____________________________________________________________________
Hall or Auditorium______________________________________________________

                               III. Speech

Subject of speech_______________________________________________________
Time to be allowed______________________________________________________
Will there be a question & answer period following speech?______________
Time to be allowed for speech___________________________________________

                       IV. Details of the Program

    Other Speakers (Please list in order of appearance)
Speaker_________________________________________________________________
Subject_________________________________________________________________
Length of Speech________________________________________________________

[[Page 525]]

                               V. Audience

Anticipated Size________________________________________________________
Composition of audience (teachers, businessmen, etc., or general public)

                              VI. Publicity

Will the meeting be open to the press?__________________________________
Will the speech be broadcast? Will it be taped, filmed, or otherwise 
recorded?_______________________________________________________________

                           VII. Miscellaneous

    Would acceptance of this invitation place the DoD speaker in 
violation of any of the guidelines contained in paragraphs 2.a. through 
i. of the accompanying Fact Sheet?
    Give any other significant information which may be helpful in the 
selection of an appropriate speaker. If more space is needed use 
continuation sheets.
Signed__________________________________________________________________

        Enclosure 5 to Part 238--President's Approved Wreath List

----------------------------------------------------------------------------------------------------------------
                                                                                           Responsible Military
              Birth date                   Former President             Location                  Dept.
----------------------------------------------------------------------------------------------------------------
Jan. 7...............................  Millard Fillmore.......  Buffalo, NY............  Air Force.
Jan. 29..............................  William McKinley.......  Canton, OH.............  Army.
Jan. 30..............................  Franklin D. Roosevelt..  Hyde Park, NY..........  Army.
Feb. 9...............................  William H. Harrison....  North Bend, OH.........  Air Force.
Feb. 12..............................  Abraham Lincoln........  Lincoln Memorial.......  Army.
                                       .......................  Springfield, IL........  Army.
3d Monday in February (Official        George Washington......  Mt. Vernon, VA.........  Army.
 Holiday).
Mar. 15..............................  Andrew Jackson.........  Nashville, TN..........  Army.
Mar. 16..............................  James Madison..........  Montpelier, VA.........  Navy (U.S. Marine
                                                                                          Corps).
Mar. 18..............................  Grover Cleveland.......  Princeton, NJ..........  Army.
Mar. 29..............................  John Tyler.............  Richmond, VA...........  Army.
Apr. 13..............................  Thomas Jefferson.......  Jefferson Memorial.....  Army.
Apr. 23..............................  James Buchanan.........  Lancaster, PA..........  Army.
Apr. 27..............................  Ulysses S. Grant.......  New York, NY...........  Army.
Apr. 28..............................  James Monroe...........  Richmond, VA...........  Army.
May 8................................  Harry S. Truman........  Independence, MO.......  Army.
May 29...............................  John F. Kennedy........  Arlington Cemetery.....  Army.
July 4...............................  Calvin Coolidge........  Plymouth, VT...........  Army.
July 11..............................  John Quincy Adams......  Quincy, MA.............  Navy.
Aug. 10..............................  Herbert C. Hoover......  West Branch, IA........  Army.
Aug. 20..............................  Benjamin Harrison......  Indianapolis, IN.......  Army.
Aug. 27..............................  Lyndon B. Johnson......  LBJ Ranch, TX..........  Air Force
Sept. 15.............................  William H. Taft........  Arlington Cemetery.....  Army.
Oct. 4...............................  Rutherford B. Hayes....  Freemont, OH...........  Army.
Oct. 5...............................  Chester A. Arthur......  Albany, NY.............  Air Force.
Oct. 14..............................  Dwight D. Eisenhower...  Abilene, KS............  Army.
Oct. 27..............................  Theodore Roosevelt.....  Oyster Bay, NY.........  Navy.
Oct. 30..............................  John Adams.............  Quincy, MA.............  Navy
Nov. 2...............................  James K. Polk..........  Nashville, TN..........  Army.
Nov. 2...............................  Warren G. Harding......  Marion, OH.............  Army.
Nov. 19..............................  James A. Garfield......  Cleveland, OH..........  Army.
Nov. 23..............................  Franklin Pierce........  Concord, NH............  Army.
Nov. 24..............................  Zachary Taylor.........  Louisville, KY.........  Army.
Dec. 5...............................  Martin Van Buren.......  Kinderhook, NY.........  Army.
Dec. 28..............................  Woodrow Wilson.........  Washington Cathedral...  Army.
Dec. 29..............................  Andrew Johnson.........  Greeneville, TN........  Army.
----------------------------------------------------------------------------------------------------------------



PART 239_HOMEOWNERS ASSISTANCE PROGRAM_APPLICATION PROCESSING--Table 
of Contents




Sec.
239.1 Purpose.
239.2 Applicability and scope.
239.3 Objective and policy.
239.4 Procedures.
239.5 List of homeowners assistance field offices.

Appendix A to Part 239--Agreement, Homeowners Assistance Program 
          Agreement Between the Department of Defense and the Department 
          of Housing and Urban Development

    Authority: Sec. 1013(f), 80 Stat. 1255, 1292; 42 U.S.C. 3301, 3302, 
12 U.S.C. 1715n.

    Source: 33 FR 2565, Feb. 3, 1968, unless otherwise noted.



Sec. 239.1  Purpose.

    This part establishes policy and procedures for (a) providing 
information on eligibility requirements and on benefits available under 
the Homeowners

[[Page 526]]

Assistance Program authorized by Pub. L. 89-754, Demonstration Cities 
and Metropolitan Development Act of 1966 (80 Stat. 1255, 1290) and (b) 
initial processing of applications for assistance under the Program.



Sec. 239.2  Applicability and scope.

    The provisions of this part apply to all Department of Defense 
components. The programs encompasses DoD military and civilian personnel 
as well as affected personnel of other Federal agencies.



Sec. 239.3  Objective and policy.

    (a) It is the objective of the DoD to assure that all applications 
for assistance under the program are given full consideration and that 
benefits under the program are extended to all homeowners who are 
determined to be entitled to assistance in accordance with applicable 
policies and procedures.
    (b) Information on the program will be disseminated on the broadest 
possible basis by making full use of military and public news media and 
by distributing a fact sheet,\1\ with an application form (DD Form 
1607)\1\ through military installations and offices and through other 
Government agencies where practicable.
---------------------------------------------------------------------------

    \1\ Filed as part of original document.
---------------------------------------------------------------------------

    (c) All possible assistance will be given to prospective applicants 
by explaining the program as described in the fact sheet, verifying 
employment or military service records, and advising in the preparation 
of the application form.



Sec. 239.4  Procedures.

    (a) Pursuant to the provisions of DoD Directive 5100.54, 
``Homeowners Assistance Program,'' December 29, 1967\1\ the Department 
of the Army will establish a central office to administer, manage, and 
execute the program under policies and procedures prescribed by the 
Assistant Secretaries of Defense (Installations and Logistics) or 
(Comptroller). In implementing the program that office or field 
components thereof will take all appropriate actions, including but not 
limited to:
    (1) Determination that a specific installation meets the 
requirements of Pub. L. 89-754, Demonstration Cities and Metropolitan 
Development Act of 1966 (80 Stat. 1255, 1290);
    (2) Determination as to the eligibility of each applicant;
    (3) Determine and advise as to the most appropriate type of 
assistance for each applicant;
    (4) Determine amounts to be paid and make such payments or, when 
appropriate, authorize and arrange for Federal acquisition of the 
applicant's property; and
    (5) Maintain such records and prepare such reports as may be 
necessary and/or required by ASD (I&L) and ASD (Comp). Field offices 
will be established at convenient locations throughout the United States 
to execute various functions of the central office as may be designated.
    (b) Pursuant to the provisions of DoD Directive 5100.54, 
``Homeowners Assistance Program,'' December 29, 1967\1\ the Department 
of the Army will establish an appeals procedure and will adjudicate 
appeals from applicants previously determined to be ineligible for 
assistance as well as from those who are dissatisfied with action on 
their claims.
    (c) Each Military Department and Defense Agency will appoint at 
least one representative at headquarters level to work with the central 
office and the Offices of ASD (I&L) and ASD (Comp) in order to insure 
that the operation of the program is effective insofar as that 
Department or Agency is concerned. Each military installation will 
establish liaison with the nearest field office to obtain any further 
guidance or assistance desired.
    (d) Each Department of Defense component will be furnished an 
initial supply of the application form and related fact sheet for 
distribution on a worldwide basis. An appropriate supply thereof will be 
distributed to each installation having a military or civilian personnel 
officer and also to such other activities and establishments as 
recruiting offices, reserve training centers, procurement offices, radar 
and missile sites, quality control offices, communications stations, 
etc., so that each may serve as a source of information on the program. 
Subsequent supplies of the application form and fact

[[Page 527]]

sheet will be procured by each DoD component as required.
    (e) Each installation or establishment not having a military or 
civilian personnel officer will be prepared to discuss the information 
contained in the fact sheet with each prospective applicant and to 
direct him to the nearest installation having a personnel or industrial 
relations officer for a more detailed explanation of the eligibility 
requirements and for initial processing of his application.
    (f) Each installation or establishment having a military or civilian 
personnel officer will insure that such officers, or other appropriate 
officers or officials, are designated to:
    (1) Provide information on the program in response to all inquiries, 
whether from prospective applicants or other interested parties. This 
will include explaining the purpose of the program, discussing 
eligibility requirements and benefits, providing copies of the fact 
sheet and application forms, and referring applicants to legal 
assistance officers for answers to questions of a legal nature.
    (2) Advise applicants in filling out Parts I and II of DD Form 1607 
\1\ (emphasizing the need for accuracy and answering all pertinent 
questions) and in determining what documents and other material would be 
acceptable as proof of homeownership and occupancy.
---------------------------------------------------------------------------

    \1\ Filed as part of original document.
---------------------------------------------------------------------------

    (i) Evidence of homeownership may include contract of sale or deed 
to the applicant, receipts for mortgage and tax payments, etc. as well 
as contract of sale or deed of conveyance from the applicant, record of 
foreclosure, etc. if the home has been disposed of.
    (ii) Evidence of occupancy of the home by the applicant may include 
receipted utility bills, appointment affidavit (Standard Form 61), 
official correspondence or other Government forms showing the officially 
recognized residence address.
    (iii) Documents submitted in evidence of homeownership and occupancy 
should be notarized or certified true copies which are complete, 
accurate, and legible. Certification by the applicant will be 
acceptable. Note that generally original copies should not be submitted 
because DoD cannot be responsible for the safekeeping or return of 
original documents.
    (3) Upon receipt of a DD Form 1607 \1\ with Parts I and II 
completed, execute Part III of the form indicating the results of review 
of the applicant's service or employment. Official personnel records 
will be the only source of proof of service or employment; when such 
records are not available locally, they will be reviewed by reference to 
the National Personnel Records Center in St. Louis, to the personnel 
office at the applicant's current place of military service or Federal 
employment, or to any other office where the records are held.
    (i) If the review verifies that the applicant was serving or 
employed after November 1, 1964, or meets prescribed exceptions to that 
date, the personnel officer or other appropriate official will forward 
to the appropriate field office the completed DD Form 1607 \1\ with all 
supporting documents, in triplicate, together with a return envelope 
addressed to the applicant, for use by the field office in acknowledging 
receipt of the application. The application will be forwarded to the 
field office having jurisdiction for the purpose of this program over 
the base or installation where the applicant was serving or employed at 
the time of the closure announcement. The list of States (Sec. 239.5), 
or parts thereof, covered by each field office will be used for this 
purpose. The map \1\ may also be used as an aid in this determination.
    (ii) If the review does not verify the applicant's statement of 
service or employment as prescribed in paragraph (f)(3)(i) of this 
section, the personnel officer will enter a statement to that effect in 
Part III of the DD Form 1607 \1\ giving details of any discrepancies. 
The form will then be returned to the applicant, who will be advised 
that he may forward his application, with a return envelope addressed to 
himself, to the appropriate field office for further review.
    (iii) At the time of action under paragraph (f)(3) (i) or (ii) of 
this section the applicant will be informed that all future inquiries 
regarding his application must be directed to the field office.

[[Page 528]]

    (4) Each installation or establishment which is designated to 
perform the actions required under this paragraph (f) will maintain a 
chronological record of each inquiry regarding the program with 
appropriate notation as to disposition for submission of periodic 
reports as required to the nearest field office.



Sec. 239.5  List of homeowners assistance field offices.

----------------------------------------------------------------------------------------------------------------
Installation ordered to be closed in whole or in
                part located in:                              Send application to:                Map reference
----------------------------------------------------------------------------------------------------------------
Connecticut, Maine, Massachusetts, New            U.S. Army Engineer Division, 424 Trapelo                     1
 Hampshire, Rhode Island, Vermont.                 Rd., Waltham, Mass. 02154.
New York, New Jersey............................  U.S. Army Engineer District, 1 11 East 16th                  2
                                                   St., New York, N.Y. 10003.
Maryland, Delaware, District of Columbia,         U.S. Army Engineer District, Post Office Box                 3
 Pennsylvania, east of and excluding McKean,       1715, Baltimore, Md. 21203.
 Elk, Clearfield, Blair, and Bedford Counties.
Virginia........................................  U.S. Army Engineer District, Fort Norfolk,                   4
                                                   803 Front St., Norfolk, Va. 23510.
Georgia, North Carolina, South Carolina.........  U.S. Army Engineer District, Post Office Box                 5
                                                   889, Savannah, Ga. 31402.
Florida, east of and excluding Leon and Wakulla   U.S. Army Engineer District, Post Office Box                 6
 Counties.                                         4970, Jacksonville, Fla. 32201.
Florida, west of and including Leon and Wakulla   U.S. Army Engineer District, Post Office Box                 7
 Counties, Alabama, Mississippi, Tennessee.        2288, Mobile, Ala. 36601.
Kentucky, Ohio, Indiana, Clark, Floyd, and        U.S. Army Engineer District, Post Office Box                 8
 Jefferson Counties only, West Virginia,           59, Louisville, Ky. 40201.
 Pennsylvania, west of and including McKean,
 Elk, Clearfield, Blair, and Bedford Counties.
Illinois, Indiana except Clark, Floyd, and        U.S. Army Engineer District, 219 South
 Jefferson Counties, Michigan, Minnesota,          Dearborn St., Chicago, Ill. 60604.
 Wisconsin.
Colorado, Iowa, Nebraska, North Dakota, South     U.S. Army Engineer District, 6012 USPO and                  10
 Dakota, Wyoming.                                  Courthouse, 215 North 17th St., Omaha,
                                                   Nebr. 68102.
Kansas, Missouri................................  U.S. Army Engineer District, 700 Federal                    11
                                                   Office Bldg., 601 East 12th St., Kansas
                                                   City, Mo. 64106.
Arkansas, Louisiana, Oklahoma, Texas, east of     U.S. Army Engineer District, Post Office Box                12
 and including Hardeman, Foard, Knox, Haskell,     17300, Fort Worth, Tex. 76102.
 Jones, Taylor, Runnels, Concho, Menard, Kimble,
 Val Verde, Kinney, Maverick, Witt, Zapata,
 Starr, Hidalgo and Cameron Counties.
New Mexico, Texas, west of and including          U.S. Army Engineer District, Post Office Box                13
 Lipscomb, Hemphill, Wheeler, Collingsworth,       1580, Albuquerque, N. Mex. 87103.
 Childress, Cottle, King, Stonewall, Fisher,
 Nolan, Coke, Tom Greene, Schleicher, Sutton,
 and Terrell Counties.
California, south of and including San Luis       U.S. Army Engineer District, Post Office Box                14
 Obispo, Kern, and Inyo Counties, Arizona,         2711, Los Angeles, Calif. 90053.
 Nevada, Clark, and Lincoln Counties only.
California, north of and including Monterey,      U.S. Army Engineer District, 650 Capitol                    15
 Kings, Tulare, and Mono Counties, Nevada,         Mall, Sacramento, Calif. 95814.
 except Clark and Lincoln Counties, Utah.
Idaho, Montana, Oregon, Washington..............  U.S. Army Engineer District, 1519 Alaskan                   16
                                                   Way, South, Seattle, Wash. 98134.
Alaska..........................................  U.S. Army Engineer District, Post Office Box              None
                                                   7002, Anchorage, Alaska 99501.
Hawaii..........................................  U.S. Army Engineer District, Fort Armstrong,              None
                                                   Honolulu, Hawaii 96813.
----------------------------------------------------------------------------------------------------------------
Filed as part of original document.


[[Page 529]]

    Appendix A to Part 239--Agreement, Homeowners Assistance Program 
   Agreement Between the Department of Defense and the Department of 
                      Housing and Urban Development

                         Article I--Introduction

    Section 1. Section 1013 of the Demonstration Cities and Metropolitan 
Development Act of 1966 (Pub. L. 89-754, enacted Nov. 3, 1966) 
authorizes the Secretary of Defense to provide assistance to owners of 
one- or two-family dwellings located at or near military installations, 
ordered to be closed in whole or in part subsequent to November 1, 1964, 
when certain determinations have been made with respect to eligibility. 
In certain instances this assistance may be rendered by acquiring title 
to the properties of such owners under terms and conditions prescribed 
by the statute.
    Sec. 2. Section 1013(d) of the Act provides a fund for the purpose 
of this program, which has been established as the Homeowners Assistance 
Fund, Defense. Section 1013(g) authorizes the Secretary of Defense to 
enter into agreement with the Secretary of Housing and Urban Development 
with respect to administration of the program. This agreement is 
executed on behalf of the Secretary of Defense by the Assistant 
Secretary of Defense (Installations and Logistics) pursuant to 
delegation of authority contained in DoD Directive 5100.54, dated 
December 29, 1967 (33 FR 2570) and by the Secretary of Housing and Urban 
Development.
    Sec. 3. For the purposes of this agreement, the following 
definitions shall apply:
    (a) Act means section 1013 of the Demonstration Cities and 
Metropolitan Development Act of 1966, Pub. L. 89-754, enacted November 
3, 1966.
    (b) Secretary of Defense means the Secretary of Defense or an 
officer or employee of the Department of Defense empowered to exercise 
any of the functions of the Secretary of Defense under the Act.
    (c) DoD means the Department of Defense.
    (d) Secretary, HUD or HUD means the Secretary of Housing and Urban 
Development or an officer or employee of the Department of Housing and 
Urban Development empowered to exercise any of the functions of the 
Secretary of Housing and Urban Development under the Act.
    (e) Corps means the Office of the Chief of Engineers, Department of 
the Army.
    (f) Division/District Engineer means either the Division Engineer of 
the Corps or the District Engineer of the Corps, as applicable under the 
circumstances, having military jurisdiction in the area in which the 
property is located.
    (g) FHA means the Federal Housing Administration.
    (h) Assistant Commissioner-Comptroller means the Assistant 
Commissioner-Comptroller of the Federal Housing Administration.
    (i) FHA Insuring Office means the local insuring office of FHA 
having jurisdiction over the area where the property is located.
    (j) Fund means the Homeowners Assistance Fund, Defense, established 
pursuant to the authority contained in section 1013(d) of the Act.
    (k) Acquired property means property acquired pursuant to the Act.

                    Article II--Policy and Objective

    Section 1. As more fully set forth below, Secretary, HUD will accept 
custody, subject to funds made available by DoD, of property acquired 
pursuant to the Act and maintain, manage, and dispose of such properties 
on behalf of the Secretary of Defense. In the event the Fund no longer 
has any monies available, the Secretary, HUD may terminate this 
Agreement and DoD shall in that event assume custody and responsibility 
for all properties accepted, and mortgage payment liabilities assumed, 
by HUD pursuant to this agreement. It is the agreed objective that 
acquired properties will be held, managed and disposed of in such a way 
as to:
    (a) Avoid further depression of local real estate market conditions 
in areas where the housing market is depressed, and
    (b) Consistent with item (a) above and with the desirability of 
disposing of the properties as rapidly as feasible, seek to obtain the 
best possible financial return to the Fund. During the period properties 
are held by FHA, and when it is feasible and in the best interest of the 
Government, consistent with HUD/FHA policy as to Secretary, HUD-owned 
property in the areas acquired in the course of FHA mortgage insurance 
operations, properties will be rented to third parties at rates 
generally obtainable for comparable properties in the area.
    Sec. 2. The Secretary of Defense and the Secretary, HUD will 
expedite action in all offices and at all levels of their organizations 
relative to matters that are the subject of this agreement, and each 
will use all available means to assure that the purposes of the Act are 
accomplished in accordance with the spirit and intent of the Act.

           Article III--Acquisition and Assumption of Custody

    Section 1. As to properties acquired by the Corps under this Act, 
acquisition will be accomplished by the Division/District Engineer, who 
will negotiate with the owner as to terms, will effect the closing, and 
will pay to the property owner such sums as may be due to him. The 
Division/District Engineer will obtain a merchantable title to the 
property

[[Page 530]]

which meets the title requirements of the Attorney General of the United 
States.
    Sec. 2. HUD/FHA, on behalf of the Fund, will assume custody of 
properties acquired as of the date that title in the property vests in 
the United States, for the purpose of holding, managing, renovating, 
renting, and disposing of said properties. The District/Division 
Engineer will file the deed for record promptly upon title vesting in 
the United States, and on the same date will notify the FHA insuring 
office of the acquisition, using FHA Form 1174,\1\ Notice of Military 
Acquisition, copy attached hereto and made a part hereof, and will on 
the same date forward the keys to the property and any other data 
concerning the property which is requested by FHA to the FHA insuring 
office. The original and two copies of FHA Form 1174, completely 
executed, will be forwarded to the FHA insuring office for each property 
acquired. The FHA insuring office will assign an FHA identification 
number to the property, insert this identification number on one copy of 
Form 1174 and promptly return this copy to the Division/District 
Engineer.
---------------------------------------------------------------------------

    \1\ Filed as part of original document.
---------------------------------------------------------------------------

    Sec. 3. Properties acquired pursuant to the Act shall be conveyed 
to, and acquired in the name of, the United States. Title to the 
properties shall be of sufficient quality and standard as to be readily 
merchantable in the locality. Encumbrances that do not affect the 
merchantability of the properties, such as easements for roads and 
utilities will not be required to be cleared from the title. In the 
event HUD/FHA determines that there is any encumbrance to title which, 
under local custom and legal procedures of the situs of the property, 
would preclude or diminish HUD/FHA's ability to dispose of the property, 
it is agreed that HUD/FHA may remove the encumbrance and that the costs 
of such removal will be borne by the Fund. In those instances where a 
defect in title is discovered, the Fund will be responsible for the cost 
of curing said defect.
    Sec. 4. As a prerequisite to acquisition of the property, the 
Division/District Engineer will procure adequate title evidence covering 
the property and will have the title evidence continued through the date 
and time of recording the deed to the United States. When the opinion of 
the Attorney General approving the title has been received, the 
Division/District Engineer will transmit same by FHA Form 1175,\1\ 
Transmittal of Recorded Deed and Title Assembly, copy attached hereto 
and made a part hereof, together with the recorded deed and other 
muniments of title, to the FHA Assistant Commissioner-Comptroller at his 
offices in Washington, D.C.
    Sec. 5. Where title to a property is acquired subject to the 
existing mortgage, the Government will assume and agree to pay said 
mortgage in accordance with the terms of the mortgage. The mortgage will 
not be prepaid unless HUD/FHA determines that prepayment is mandatory to 
enable HUD/FHA to effectively manage and dispose of the property.
    Sec. 6. Any mortgage, other than a first mortgage, which is assumed 
by the Government pursuant to the Act, will be paid off as a part of the 
closing of the purchase transaction. All mortgage arrears existing with 
respect to the first mortgage will be brought current at the time of the 
property acquisition. If HUD/FHA ascertains that mortgage arrears have 
not been brought current, HUD/FHA is authorized to make the necessary 
payment to restore the mortgage account to a current condition and the 
Fund will bear the costs of same.
    Sec. 7. Possession of acquired properties will normally be obtained 
at the time title is vested in the United States and at the time FHA 
Form 1174 is forwarded to HUD/FHA. Properties will be delivered vacant 
to FHA, except in the following circumstances:
    (a) HUD/FHA will accept custody of a property occupied under a lease 
which cannot be terminated and has an unexpired portion of less than 1 
year provided all payments due under the lease are current, and 
provided, further, that the lessee will waive any right to exclusive 
extension of the lessee, other than month-to-month occupancy.
    (b) Owners or tenants, on a month-to-month basis, of acquired 
properties may be permitted a 30-day period following acquisition of 
title in the name of the United States to vacate the property.
    (c) Upon agreement with the Director of the FHA insuring office, 
HUD/FHA will accept custody of properties occupied under leases in 
excess of a year's duration.
    Sec. 8. In cases where properties are acquired subject to existing 
leases, the leases must be assigned and transferred to the United 
States. Such leases will be delivered to the FHA insuring office with 
FHA Form 1174. All costs of eviction incurred by HUD/FHA will be 
reimbursed by the Fund. Except in cases involving a lease in which the 
unexpired portion is less than 1 year, no agreement shall be entered 
into with owners or occupants of properties to be acquired concerning 
their continued occupancy in the property without prior written approval 
of the Director of the FHA insuring office and the tenure of any 
occupancy will be entirely at the option of the FHA insuring office.
    Sec. 9. The Government will normally be a self-insurer of acquired 
properties and hazard insurance will be cancelled by HUD/FHA as soon as 
possible after passing of title. Any unearned premium will be the 
property of the former owner who will be responsible for

[[Page 531]]

claiming same from the insurer. The Department of Defense understands 
that the decision as to whether or not hazard insurance must be carried 
is that of the mortgagee and HUD/FHA must abide by the requirements of 
the mortgagee. In the event the mortgagee, pursuant to the terms of the 
mortgage, requires that hazard insurance be carried, HUD/FHA will obtain 
a hazard insurance policy on the property in an amount sufficient to 
comply with the mortgage. In the event hazard insurance is obtained, 
HUD/FHA will pay for such insurance and will be reimbursed from the 
Fund.

            Article IV--Maintenance, Management and Disposal

    Section 1. To the extent not inconsistent with the provisions of 
this Agreement, HUD/FHA will maintain, manage, renovate, rent, sell, and 
dispose of the acquired properties in the same manner and under the same 
procedures as are used by HUD/FHA for properties acquired pursuant to 
FHA insurance contracts. HUD/FHA will give neither advantage nor 
disadvantage insofar as sale or other activity is concerned to 
properties acquired pursuant to this Agreement. HUD/FHA will treat such 
properties in the same manner as properties acquired pursuant to FHA 
insurance contracts. HUD/FHA is hereby authorized to repair, renovate, 
restore, or take any protective maintenance deemed necessary by HUD/FHA 
insofar as any property covered by this Agreement is concerned. The 
terms of rental, sale for cash or credit or by assumption of the 
existing mortgage, or by other means of disposal of any property covered 
by this Agreement which is contracted for or otherwise entered into by 
FHA shall be final.
    Sec. 2. While any acquired property is under HUD/FHA's custody, 
payments in lieu of taxes will be made by the FHA Assistant 
Commissioner-Comptroller to local taxing authorities in amounts 
equivalent to the taxes which would be payable were the properties in 
private hands, except when the Government is making expenditures for 
streets, utilities or other public services. In such cases, the 
Division/District Engineer will advise the FHA Assistant Commissioner-
Comptroller of such expenditures and specify what allowances are to be 
deducted. It shall be the responsibility of the Division/District 
Engineer to advise the FHA Assistant Commissioner-Comptroller in such 
cases sufficiently prior to the time that the Assistant Commissioner-
Comptroller makes payment of any tax bill received by FHA on acquired 
properties. In the event that such notice is not received from the 
Division/District Engineer by such time, the Assistant Commissioner-
Comptroller may pay the amount of the net tax bill without penalties.
    Sec. 3. This agreement contemplates that disposal of the properties 
will be accomplished by the financing arrangements available to HUD/FHA 
and beneficial to DoD. The following financial arrangements will 
generally be used and FHA will be guided by the same considerations that 
govern FHA sales of its properties:
    1. Sale of the property for cash or through the use of a 
conventional uninsured mortgage.
    2. Sale of the property providing for assumption of the existing 
mortgage indebtedness by the buyer or sale of the property subject to 
the existing mortgage indebtedness.
    3. Sale of the property by use of FHA's insured private financing 
program or FHA's instant FNMA closing program if available.
    4. Sale of the property by use of a purchase money mortgage taken by 
the Secretary, Department of Housing and Urban Development. In those 
cases where an existing mortgage is assumed and the assumptor 
subsequently defaults, the Fund will be responsible for all costs, 
expenses or losses sustained by HUD/FHA in satisfying the Government's 
liability on the mortgage. In the event it is advantageous to the 
Government to sell by assumption and the sales price is less than the 
outstanding mortgage balance, the Fund shall be responsible for the 
money which is required to reduce the outstanding principal balance of 
the mortgage. When, in order to facilitate the sale of acquired 
properties, FHA insures the mortgage, the Fund will be responsible for 
all expenses incurred by FHA on the first sale, including losses in 
connection therewith, as computed by the FHA Assistant Commissioner-
Comptroller.

             Article V--Financing, Accounting, and Reporting

    Section 1. The Corps will furnish to HUD/FHA by June 1 of each year 
an estimate of the number of housing units expected to be acquired and 
transferred to HUD/FHA during the succeeding fiscal year and those 
during the following budget year. The estimates will show the number of 
housing units, FHA insuring office jurisdiction, estimated average 
monthly principal and interest payments and expected quarterly phasing 
of transfer to FHA.
    On August 1 of each year HUD/FHA will submit a budget estimate to 
the Corps setting forth the estimated financial requirements for the 
activities that FHA is to perform for the Secretary of Defense pursuant 
to the terms of this agreement covering the then current fiscal year and 
the following budget year. The estimate, in terms of obligations/
expenditures, should be by FHA insuring office jurisdiction and in the 
same cost categories as maintained in the automatic tape record as set 
forth in Article V, section 2, for each acquired property and as 
included in the monthly reimbursement request set forth in Article V, 
section 3, for all other expenses. On May 1 of each year FHA

[[Page 532]]

will furnish to the Corps in the same format as the August 1 statement 
an updated estimate of obligations/expenditures then estimated to be 
incurred in the succeeding fiscal year.
    Based on the estimated financial requirements, in consonance with 
budgetary and appropriation actions, the Corps will issue to FHA on July 
1 of each year a reimbursable order including an obligation/expenditure 
limitation as to the amount which the FHA may, on a net basis, obligate/
expend in anticipation of reimbursement from the Fund for that fiscal 
year. FHA will promptly advise the Corps whenever it determines that the 
performance of its responsibility under this Agreement requires any 
adjustment, together with an estimate and explanation of the changes 
needed so as to permit the continued effective operation of the program 
as contemplated under this agreement. The Corps of Engineers will 
arrange to provide for the necessary adjustment within its authority. 
Where this is unfeasible the Corps of Engineers will submit the 
requirement promptly to the Secretary of Defense. The Secretary of 
Defense will either provide the additional resources required or will 
directly advise FHA as to the course of action necessary to be taken 
pending the availability of additional resources.
    Sec. 2. The FHA will maintain in its automated tape records an 
account for each acquired property. The account will separately identify 
each of the following:
    (a) The FHA identification number, which will be assigned by the FHA 
insuring office. The Corps will be advised of the FHA identification 
number on the copy of the FHA Form 1174 returned to the Corps per 
Article III, section 2.
    (b) Property address, entered by the Corps on the FHA Form 1174 
within the space allotted in ADP records.
    (c) Outstanding mortgage balance at acquisition.
    (d) Property acquired. Contra to (c) above, this will be established 
in the same amount and will offset the outstanding mortgage balance. In 
the event a property is sold with the purchaser assuming the mortgage or 
with FHA taking a purchase money mortgage the outstanding balance 
assumed by the purchaser or the amount of the purchase money mortgage 
accepted will be recorded as a reduction of the amount originally 
established.
    (e) Principal payments including prepayments of the entire balance 
when necessary by FHA on the mortgage.
    (f) Interest payments by FHA on the mortgage.
    (g) Payments in lieu of taxes and insurance payments by FHA. The 
Corps will notify FHA on the FHA Form 1174 of Escrow Accounts retained 
by the mortgagee.
    (h) Maintenance and operating expenses paid by FHA including any 
special payments for evictions and removal of title impediments. Direct 
expense transactions of $100 or more will be a direct charge to the 
affected property account. All other expenses, generally derived from 
net settlements with brokers, made pursuant to FHA 2570 Accounting 
Manual for Acquired Properties, as may be amended from time to time, 
will be prorated monthly to all home properties in FHA's inventory, 
including those acquired pursuant to this agreement. Net settlement 
means expenses paid by brokers less rental collections.
    (i) Sales expenses paid by FHA which will be for sales, closing 
costs, and discount on notes.
    (j) Net FHA incurred expense, which will be the net total of amounts 
recorded in items (e) through (j) of this section.
    (k) Gross Sales Price agreed to by FHA. This is not the same as cash 
proceeds which will be reported separately by FHA.
    (l) Net Expense or Collection on Sold Properties, which will be the 
gross sales price less adjustments to item (d) of this section less item 
(j) of this section.
    (m) A Corps' furnished base identification and homeowner 
classification code consisting of 7 digits (2 digits for State code and 
4 digits for installation number plus the number ``2'' for civilian or 
the number ``1'' for military homeowner).
    Sec. 3. FHA will furnish to the Corps the following reports:
    (a) Monthly, no later than 30 working days after the end of each 
calendar month the FHA Form 1131, ``Acquired Home Property, Maintenance 
Phase Trial Balance,'' showing separate totals to date for items (c) 
through (l) of Article V, section 2, for each FHA identification number.
    (b) Monthly, no later than 30 working days after the end of each 
calendar month a statement supporting an SF 1080 billing setting forth 
the following:
    (1) Net change in FHA expenses for acquired properties as reported 
on the current and prior month, Article V, section 3, item (a) reports, 
separately for ``on hand'' and for ``sold'' properties.
    (2) Sales proceeds, which will be detailed by the gross sales price 
agreed to by FHA less amount of mortgages assumed by buyers less 
purchase money mortgages accepted by FHA.
    (3) Principal and interest collections separately on purchase money 
mortgages.
    (4) FHA insuring office expenses directly related to this agreement, 
developed on basis of reports received in accordance with FHA Manual, 
Field Expense and Performance Handbook, as may be amended from time to 
time. This item will be supported by a schedule showing total expenses 
incurred by each FHA insuring office.
    (5) FHA Headquarters expenses directly related to this agreement 
developed on basis of

[[Page 533]]

reports received in accordance with FHA Manual, Departmental Expenses 
and Performance Handbook, as may be amended from time to time.
    (6) HUD departmental level expenses directly related to this program 
which will include Automatic Data Processing (ADP) services, printing 
and some other minor expenses, which in the judgment of FHA are 
appropriately chargeable under this Agreement. ADP services will include 
the cost of magnetic tapes furnished the Corps under Article V, section 
3, item (c) and Article V, section 4, and personal service costs.
    Personal service costs included in items (4), (5), and (6) will be 
limited to those directly related to this program on the basis of time 
worked and will consist of salary cost plus FICA and the Government 
contribution for health benefits, life insurance, and retirement funds. 
An additional 15.9 percent of this total will be added to cover the cost 
of earned annual leave, sick leave taken, and holiday leave.
    (7) Amount due FHA from the Fund or amount due the Fund from FHA.
    (c) Quarterly, not later than 30 working days after the end of each 
calendar quarter a duplicate of the FHA automated tape record for all 
acquired properties.
    Sec. 4. Whenever FHA determines that they do not plan to offer 
properties for sale within 12 months after acquisition, the FHA will so 
advise the Secretary of Defense, with the expected prospects for such 
disposition. The Secretary of Defense will consult with the FHA on 
alternative means of disposal in such cases where such alternatives are 
considered feasible.
    Sec. 5. FHA will not drop closed cases for properties acquired 
pursuant to the Act from the automated tape records except by special 
agreement with the Corps, at which time a duplicate of FHA's automated 
tape record of such cases will be furnished to the Corps.
    Sec. 6. It is agreed and understood that, in performing the 
accounting and reporting operations set out herein, FHA will accomplish 
the objectives using its existing automated data processing routines and 
programs, and that no special programming or detailed printouts will be 
required from FHA.
    Sec. 7. The Corps, within 6 working days after receipt of a monthly 
statement indicating an amount due FHA, will reimburse FHA by check for 
the amount shown on the statement. The check will be made payable to the 
Federal Housing Administration and will be forwarded to the FHA 
Assistant Commissioner-Comptroller.
    Sec. 8. In those instances where the statement indicates an amount 
due the Fund, a check payable to the Homeowners Assistance Fund, 
Defense, for such amount will accompany the monthly statement submitted 
to the Corps by FHA.
    Sec. 9. The following FHA issuances and changes thereto will be 
furnished to the Corps:
    (a) FHA 2750, Accounting Manual for Acquired Properties;
    (b) FHA Manual, Field Expense and Performance Handbook;
    (c) FHA Manual, Departmental Expense and Performance Handbook.
    Sec. 10. FHA will maintain a separate document file for each 
acquired property. The file will contain at least the FHA Form 1174 and 
FHA Form 1175 and attachments thereto.

                     Article VI--Finality of Action

    Section 1. This agreement embodies the full understanding of the 
Department of Defense and the Department of Housing and Urban 
Development concerning their responsibilities and it is understood that 
all decisions made and all actions taken by HUD/FHA within the terms of 
this agreement with respect to all aspects of clearing impediments of 
title, prepayment of mortgages, eviction of occupants, prepayment of 
hazard insurance coverage premiums, and all other matters relating to 
the maintenance, management, renovation, rental, sale, or other disposal 
of properties and the selection and use of brokers shall be final and 
conclusive as fully as if made or taken by the Secretary of Defense.

                  Article VII--Delegation of Authority

    Section 1. The Secretary of Housing and Urban Development is hereby 
authorized, with respect to acquired properties, to acquire title to, 
hold, manage, sell for cash or credit by taking a purchase money 
mortgage in the name of the Secretary of Housing and Urban Development, 
and, in connection therewith, to execute deeds of conveyance and all 
other instruments necessary to fulfill the purposes of section 1013 of 
the Demonstration Cities and Metropolitan Development Act of 1966 (Pub. 
L. 89-754, enacted Nov. 3, 1966), to issue rules and regulations and to 
make any or all determinations and to take any or all further actions in 
connection with acquired properties which the Secretary of Defense is 
authorized to undertake pursuant to the provisions of the Act. The 
Secretary of Housing and Urban Development is further authorized to 
redelegate any of the functions, powers and duties delegated herein to 
officers and employees of HUD and to authorize successive redelegations.

[34 FR 18031, Nov. 7, 1969]

[[Page 534]]



PART 240_CRITERIA AND PROCEDURES FOR PROVIDING ASSISTANCE TO LOCAL 
EDUCATIONAL AGENCIES--Table of Contents




Sec.
240.1 Purpose.
240.2 Applicability and scope.
240.3 Definitions.
240.4 Policy.
240.5 Responsibilities.
240.6 Procedures.

Appendix A to Part 240--Sample Letter of Application for Financial 
          Assistance

    Authority: Department of Defense Appropriations Act, 1991, Title II 
(Pub. L. 101-511, 104 Stat. 1860); 10 U.S.C. 113(d).

    Source: 56 FR 28821, June 25, 1991, unless otherwise noted.



Sec. 240.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures under Title II of Pub. L. 101-511 for the 
Department of Defense to provide financial assistance to the LEAs that 
are heavily impacted by the military presence.



Sec. 240.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense (OSD).
    (b) The schools operated by the LEAs providing free public education 
to dependent children of Armed Forces members or DoD civilian personnel 
who reside on Federal property.



Sec. 240.3  Definitions.

    (a) Applicant. Any LEA whose ADA military section 3(a) and section 
3(b) students equals at least 35 percent of its total ADA and that 
submits a letter of application to the Department of Defense; files an 
application for financial assistance; has received, or shall receive 
funds under section 3 of the Impact Aid Program; and submits documents 
and forms required by Sec. 240.4(c)(5) (i) through (iii) of this part.
    (b) Current expenditures. Expenditures for free public education, 
including expenditures for administration, instruction, attendance and 
health services, public transportation services, operation and 
maintenance of plant, fixed charges, and net expenditures to cover 
deficits for food services and student body activities, but not 
including expenditures for community services, capital outlay, debt 
service, or any expenditures made from funds under Public Law No. 89-10, 
title I. See the amended definition of ``current expenditures'' in 
Public Law No. 100-297 (1988).
    (c) DoD Contribution. The amount of financial assistance an 
applicant shall receive under Public Law No. 101-511, title II.
    (d) Federal property. Real property that because of Federal law, 
agreement, or policy is exempt from taxation by a State or political 
subdivision of a State and that the United States owns in fee simple or 
leases from another party.
    (e) Local Education Agency (LEA). A public organization (usually a 
school district) that has the authority to operate public schools within 
the limits of the applicable State law.
    (f) Military personnel. A person who is an Armed Forces member 
serving on active duty.
    (g) Military 3(a) student. A child who attends the school(s) of a 
LEA that provides free public education and who, while attending such 
school(s) of the LEA, resides on Federal property and has a parent who 
is on active duty in the Armed Forces (as defined in section 101 of 10 
U.S.C.).
    (h) Military 3(b) student. A child who attends the schools of a LEA 
that provides a free public education and who, while attending such 
school(s), has a parent who is on active duty in the Armed Forces (as 
defined in 10 U.S.C. 101) but does not reside on Federal property.
    (i) Parent. The lawful father or mother of a person.
    (j) Per-Pupil Expenditure (PPE). The average current expenditure for 
an individual student.



Sec. 240.4  Policy.

    It is DoD policy that:
    (a) During fiscal year (FY) 1991, the Department of Defense shall 
obligate 10 million dollars to assist the LEAs that meet criteria in 
paragraph (c) of this section. Of this 10 million dollars:
    (1) Eight hundred and eighty-six thousand dollars shall be provided 
to the Killen, Texas, Independent School District.

[[Page 535]]

    (2) One hundred and sixty-seven thousand dollars shall be provided 
to the Copperas Cove, Texas, Independent School District.
    (3) The remaining 8,947,000 dollars shall be used only to assist the 
eligible LEAs operating schools that provide free public education to 
dependent children of Armed Forces members of DoD civilian personnel 
who:
    (i) While attending those schools, reside on Federal property.
    (ii) Without such additional assistance, are unable to provide a 
level of education for such dependents equal to the comparable level of 
education provided in the State where such dependents reside.
    (b) The OSD shall consult with the Office of the Secretary of 
Education before providing financial assistance to the LEAs.
    (c) To be eligible for financial assistance:
    (1) The LEA must be unable, without such additional assistance, to 
provide a level of education for such students equal to the comparable 
level of education provided in the State where such students reside (as 
determined by comparable student data).
    (2) The LEA has in school year (SY) 1990-1991 an average daily 
attendance (ADA) of military section 3(a) or 3(b) students (see Sec. 
240.3 (g) and (h)) or a combination of military section 3(a) and 3(b) 
students that is not less than 35 percent of the LEA's total ADA. At 
least two students attending the LEA must be the dependents of Armed 
Forces members or of DoD civilian personnel. (For the purposes of this 
section, the Department of Defense shall rely on ADA data from the U.S. 
Department of Education (DoED)).
    (3) For the prior and current FYs, the LEA has applied for and 
received, or shall receive, financial assistance from all regular 
Federal and State educational aid programs available to it, including 
the Impact Aid Program (Pub. L. No. 81-874, Section 3).
    (4) The eligibility of the LEA under State law for State aid for 
free public education, and the amount of that aid, is no different than 
the eligibility and amounts received by the LEAs without military 
dependent students.
    (5) The LEA files the following with the Assistant Secretary of 
Defense (Force Management and Personnel (ASD (FM&P)):
    (i) A letter of application (see appendix A to this part).
    (ii) One original and two copies of table 8-3 and table 9, which are 
published by the DoED, from the following forms:
    (A) ED Form 4019 (Revised 8/90 Page 8), ``Fiscal Report For Sections 
2, 3(d)(2)(B), and 3(d)(3)(B)(ii) Payment Purposes.''
    (B) ED Form 4019 (Revised 8/90 Page 9), ``Financial Burden and 
Effort Data.''
    (iii) A copy of an independently audited financial report of the 
applicant LEA for the second preceding FY.
    (d) The eligible LEAs shall receive financial assistance only for 
those students who are dependent children of military personnel residing 
on Federal property while attending a school of the applicant LEA.
    (e) Applications for financial assistance, under paragraphs (a)(1) 
through (a)(3)(iii) of this section must be received no later than June 
30, 1991.
    (f) The amount of assistance (the DoD contribution) for the eligible 
LEAs may not exceed the amount derived from the following formula:
    (1) Of the 10 million dollars available:
    (i) Eight hundred and eighty-six thousand dollars shall be provided 
to the Killeen, Texas, Independent School District.
    (ii) One hundred and sixty-seven thousand dollars will be provided 
to the Copperas Cove, Texas, Independent School District.
    (iii) Of the 8,947,000 dollars remaining:
    (A) Amounts of 6,531,310 dollars shall be obligated to those 
eligible LEAs, whose per-pupil expenditure (PPE) for the second 
preceding FY was less than the average PPE in the State for the second 
preceding FY.
    (B) Amounts of 2,415,690 dollars shall be obligated to those 
eligible LEAs, whose PPE for the second preceding FY was equal to, or 
greater than, the average PPE in the State for the second preceding FY. 
(For the purposes of this section, the Department of Defense will rely 
on PPE data from the DoED.)

[[Page 536]]

    (2) For those eligible LEAs, whose average PPE for the second 
preceding FY was less than the average PPE in the State for the second 
preceding FY, the LEA shall receive an amount, as follows:
    (i) Equal to the LEA's military section 3(a) ADA for SY 1990-1991.
    (ii) Multiplied by the quotient of the funds available to those 
LEAs, whose PPE for the second preceding FY was less than the average 
PPE in the State for the second preceding FY (6,531,310 dollars).
    (iii) Divided by the sum of the ADAs for SY 1990-1991 of military 
section 3(a) students of those same eligible LEAs.
    (3) For those eligible LEAs, whose average PPE for the second 
preceding FY was equal to, or greater than the average PPE in the State 
for the second preceding FY, the LEA shall receive an amount, as 
follows:
    (i) Equal to the LEA's military section 3(a) ADA for SY 1990-1991.
    (ii) Multiplied by the quotient of the funds available to those 
LEAs, whose PPE for the second preceding FY was equal to, or greater 
than, the average PPE in the State for the second preceding FY 
(2,415,690 dollars).
    (iii) Divided by the sum of the ADAs for SY 1990-1991 of military 
section 3(a) students of those same eligible LEAs.
    (4) The sum of the ADAs for SY 1990-1991 for the military section 
3(a) students in Killeen, Texas, Independent School District, and the 
Copperas, Texas, Independent School District, shall:
    (i) Be deducted from the sum of the ADAs for SY 1990-1991 for the 
military section 3(a) students of all the eligible LEAs.
    (ii) Not be used in calculating the DoD contribution.
    (5) The LEAs that have been identified in Public Law No. 101-511, 
title II, shall receive the specified amount, but shall not be eligible 
for additional funding under paragraphs (f)(1)(i) through (iii) of this 
section.
    (6) The ASD (FM&P) shall calculate the proposed contribution.
    (g) The contribution may be used for all students in the LEA, at the 
discretion of the appropriate officials in the LEA.



Sec. 240.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Force management and 
Personnel) shall:
    (1) Ensure the implementation of those policies and procedures.
    (2) Provide assistance, as required, to the potentially eligible 
LEAs to meet the requirements in Sec. 240.4(c)(5)(i) through (iii) of 
this part.
    (b) The General Counsel of the Department of Defense shall provide 
legal advice for the implementation of this part.



Sec. 240.6  Procedures.

    (a) An applicant requesting assistance under those criteria for FY 
1991 in Sec. 240.4(c) (1) through (4) of this part, shall submit the 
following:
    (1) A letter of application (see sample in appendix A to this part).
    (2) One original and two copies of table 8-3 and table 9, which are 
published by the DoED, from the following forms:
    (i) ED Form 4019 (Revised 8/90 Page 8), ``Fiscal Report For Sections 
2, 3(d)(2)(B), and 3(d)(3)(B)(ii) Payment Purposes.''
    (ii) ED Form 4019 (Revised 8/90 Page 9), ``Financial Burden and 
Effort Data.''
    (3) A copy of an independently audited financial report of the 
applicant LEA for the second preceding FY, requesting a contribution and 
ensuring the ADS(FM&P) that the LEA has applied for, has received, or 
shall receive all financial assistance from other sources for which it 
is qualified.
    (4) The letter of application to the following address:

Assistant Secretary of Defense (Force Management and Personnel) 
    Washington, DC 20301-4000.

    (b) The applicant shall file a copy of the letter of application for 
financial assistance and required supportive information with the State 
educational agency (SEA). The SEA may submit comments on the LEA's 
application to the Department of Defense (at the address in Sec. 
240.6(a) of this part), by July 15, 1991. Such comments shall be 
considered, when applications are reviewed by the OSD.
    (c) The application and all required supporting information must 
reach the

[[Page 537]]

ASD(FM&P) no later than June 30, 1991.

   Appendix A to Part 240--Sample Letter of Application for Financial 
                               Assistance

Assistant Secretary of Defense (Force Management Personnel), Washington, 
          DC 20301-4000
    Dear Mr. Assistant Secretary:
    Pursuant to title II of Public Law 101-511, ``Department of Defense 
Appropriations Act,'' November 5, 1991, the (name of the local 
educational agencies (LEA)) requests financial assistance for the LEA 
for school year 1990-1991.
    We certify that the LEA has applied for financial assistance from 
all sources, including the State of (name). We understand that funds 
available for that purpose shall be paid on a per-pupil basis for 
military section 3(a) students only. Enclosed find an original, and two 
copies, of tables 8-3 and 9 from the ``Application For School Assistance 
in Federally Affected Areas,'' published by the U.S. Department of 
Education, and a copy of our independent audit ``(title)'' prepared by 
(name of firm or agency). We have submitted a complete and timely 
application for section 3 impact aid assistance to the Secretary of 
Education. A copy of this letter, with the above supporting information, 
is being submitted to the State educational agency.
     Sincerely,
(Authorized LEA Official)



PART 242_ADMISSION POLICIES AND PROCEDURES FOR THE SCHOOL OF MEDICINE, 
UNIFORMED SERVICES UNIVERSITY OF THE HEALTH SCIENCES--Table of Contents




Sec.
242.1 Purpose.
242.2 Applicability.
242.3 Definitions.
242.4 Policies.
242.5 Admission procedures.
242.6 Central point of contact.
242.7 Responsibilities.
242.8 Academic, intellectual, and personal requirements for admission to 
          the first-year class.
242.9 Academic, intellectual, and personal requirements for admission to 
          advanced standing.
242.10 Effective date and implementation.

    Authority: 10 U.S.C. 2112, et seq. Pub. L. 92-426.

    Source: 41 FR 5389, Feb. 6, 1976, unless otherwise noted.



Sec. 242.1  Purpose.

    This part establishes policies and procedures and assigns 
responsibilities for the selection of entrants to the School of Medicine 
of the Uniformed Services University of the Health Sciences (DoD 
Directive 5105.45, ``Uniformed Services University of the Health 
Sciences,'' April 16, 1974).\1\
---------------------------------------------------------------------------

    \1\ Filed as part of original. Copies available from Naval 
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, Pa. 
19120, Attn: Code 300.
---------------------------------------------------------------------------



Sec. 242.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Uniformed Services University of the Health 
Sciences (USUHS), and the Department of Defense Medical Examination 
Review Board (DoD MERB).



Sec. 242.3  Definitions.

    As used herein, the following definitions apply:
    (a) Uniformed Services. As used herein, means the Army, Navy, Air 
Force, Marine Corps, and the Commissioned Corps of the Public Health 
Service.
    (b) Military Personnel. For purposes of this Directive, ``Military 
Personnel'' shall include the following:
    (1) Individuals currently on (or on orders for) active duty for a 
period of 90 days or more in any of the three Military Departments.
    (2) Reserve component personnel enrolled in the Armed Forces Health 
Professions Scholarship Program.
    (3) Persons enrolled in scholarship ROTC or advanced (junior-senior 
level) nonscholarship ROTC.
    (4) Individuals in attendance at any of the three Military 
Department Service Academies.
    (c) Federal-duty obligation. The obligation to serve on active duty 
in the Army, Navy, Air Force, or the Commissioned Corps of the Public 
Health Service.
    (d) The program. Means the Medical School program of the Uniformed 
Services University of the Health Sciences.
    (e) Member of the program. An individual who is enrolled in the 
School of Medicine of USUHS.

[[Page 538]]

    (f) Accredited institution. A college, university, or institution 
located in the United States or Puerto Rico or Canada, and accredited by 
an accrediting agency or association that is recognized for such purpose 
by the U.S. Commissioner of Education. Included within this definition 
are those institutions which are in the process of seeking accreditation 
and currently have provisional or conditional accreditation, or 
candidacy status for accreditation, based solely on the newness of the 
institution.
    (g) Medical college admission test. A nationally standardized 
examination, administered by the American Medical College Testing 
Program, which is designed to measure general and specific aptitude for 
medical studies.



Sec. 242.4  Policies.

    (a) The School of Medicine, USUHS, shall consider applications for 
admission from persons who:
    (1) Are citizens of the United States;
    (2) Are at least 18 years old at the time of matriculation, but have 
not become 28 years old as of June 30 in the year of admission. However, 
any student who has served on active duty in the Armed Forces may exceed 
the age limitation by a period equal to the time served on active duty 
provided that student has not become 34 years old by June 30 in the year 
of admission.
    (3) Are not under 18 years of age at time of entry to the first-year 
class;
    (4) Are of good moral character;
    (5) Meet the physical qualifications and security requirements for a 
Regular commission in the Uniformed Services.
    (i) Standards of medical fitness for commissioning in the Uniformed 
Services shall be chapter 5, AR 40-501 \2\ except for eyes and vision 
which shall be as prescribed in paragraphs 2-12 and 2-13, chapter 2.
---------------------------------------------------------------------------

    \2\ Army standards of medical fitness will be used as agreed to by 
the Secretaries of the Military Departments. AR 40-501 filed as part of 
original. Copies available at the Army Publications Counter, Rm 18928, 
The Pentagon, Washington, D.C. 20310.
---------------------------------------------------------------------------

    (ii) Security requirements for commissioning in the Military 
Departments are prescribed in DoD Directive 5200.2.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 242.1.
---------------------------------------------------------------------------

    (6) Meet the academic, intellectual, and personal qualifications 
specified in Sec. Sec. 242.8 and 242.9.
    (7) Are motivated to pursue a medical career in the Uniformed 
Services;
    (8) Are not otherwise obligated or committed for service in the 
Army, Navy, Air Force or Marine Corps as a result of current or prior 
participation in programs of study or training sponsored by these 
Military Services. (Unless specifically prohibited by law or Department 
of Defense policy, individuals may be permitted to interrupt sponsored 
training programs and/or associated service commitments for the purpose 
of entering the School of Medicine, at the discretion of the appropriate 
Military Department sponsor. See also paragraph (e) of this section on 
obligated service requirements.)
    (b) In making admissions decisions, the School will adhere to the 
principle of equal educational opportunity for all. Sex, race, religion, 
national origin, marital status, and State of residence shall not be 
factors influencing the selection process. Aspirants seeking entrance 
shall be judged strictly on merit, in terms of demonstrated aptitude, 
motivation, and potential for succeeding in medicine, both academically 
and professionally. Only the most promising and best qualified of the 
applicants shall be accepted for admission.
    (c) While enrolled in School, students shall serve on active duty as 
Reserve commissioned officers (Medical Officer Candidates), pay grade O-
1, in one of the Uniformed Services, the Uniformed Service of assignment 
to be determined under procedures established by the Secretaries of the 
Military Departments and the Assistant Secretary of Defense Health 
Affairs in coordination with the President of the University. 
Applicants' preferences shall be honored to the extent possible in 
making Service assignments. However, to insure that the makeup of each 
entering class is equitably constituted, students shall be assigned 
proportionally to the three Military Departments, based on

[[Page 539]]

projected end strengths of the individual Medical Corps at time of 
graduation. Students shall not be counted against any prescribed Service 
strengths while in School. Individuals admitted to the School of 
Medicine holding Regular commissions must resign their Regular 
appointments to enter the School.
    (d) Upon satisfactory completion of the medical school program, 
graduates shall, if qualified, be tendered Regular Medical Corps 
appointments, unless otherwise covered under 10 U.S.C. 2115.
    (e) Graduates of the School shall incur a Federal active-duty 
obligation of 21 months for each year or portion thereof spent in 
medical training, except that in no case will the minimum obligation be 
less than 27 months. Except as law or Department of Defense policy 
otherwise prescribes, this obligation shall be served consecutively with 
any other active-duty obligation.
    (f) If dropped from the School for deficiencies in conduct or 
studies, or for other reasons, the student shall immediately be referred 
for disposition to the appropriate Military Department, which shall have 
the prerogative of either:
    (1) Requiring the individual to fulfill his incurred service 
obligation, as stated in the Uniformed Services Health Professions 
Revitalization Act of 1972 (10 U.S.C., 2101 et seq.), by performing duty 
in some appropriate capacity, as determined by the Secretary of the 
Military Department concerned. (In no case shall any such member be 
required to serve on active duty for any period in excess of a period 
equal to the period he participated in the program, except that in no 
case may any such member be required to serve on active duty less than 
one year.); or
    (2) Waiving the individual's incurred service obligation, if that 
action would be in the best interests of that Service. (Such relief, 
though, shall not relieve the individual from any other active-duty 
obligation imposed by established law.) Individuals whose service 
obligation is waived may, at the discretion of the Secretary of the 
Military Department concerned, be required to reimburse the Government 
for all or a part of the tuition and other educational costs incurred. 
However, a member of the program may not be relieved of his Service 
obligation solely because he is willing and able to reimburse the 
Government for all educational expenses.
    (g) Periods of time spent in sponsored graduate medical education 
shall not count toward satisfying the medical school Federal-duty 
obligation.

[54 FR 31335, July 28, 1989]



Sec. 242.5  Admission procedures.

    (a) Application--(1) Civilians. Civilians seeking admission to the 
School of Medicine shall make direct application following instructions 
published in the School catalog. These applications shall include an 
indication of Service preference(s).
    (2) Military personnel. Formal application requirements shall be the 
same as those for civilians except that military personnel shall be 
required to have approval, in writing, from the Secretary of the 
Military Department concerned or his designee prior to submitting formal 
application to the School of Medicine for admission. The individual 
concerned shall initiate the request for approval to apply through 
appropriate Service channels. The Secretaries of the Military 
Departments, or their designees, shall consider the criteria in Sec. 
242.4(a) (1) through (5) and paragraph (a)(8) of that section as the 
basis for approving/disapproving such requests. An information copy of 
each approval shall be forwarded to the School of Medicine, USUHS, Attn: 
Assistant Dean for Academic Support. The School of Medicine shall not 
process a military person's application until official approval is 
received from the Military Department concerned.
    (b) Conditional selection of candidates for admission. The School of 
Medicine shall review all applications and conditionally select 
candidates to fill available class spaces. Those conditionally selected 
shall be the best qualified applicants, based on aptitude, intelligence, 
maturity, personality, emotional stability, diligence, stamina, 
enthusiasm, motivation, and other relevant factors, consistent with the 
practices followed by other professional training institutions.
    (1) Civilian selectees. The School of Medicine shall ensure that 
civilian selectees meet the eligibility criteria in

[[Page 540]]

Sec. 242.4(a) (1) through (4), paragraph (a) (6) and (7) of that 
section.
    (2) Military selectees. Military Departments are required to screen 
and approve their personnel for criteria in Sec. 242.4(a) (1) through 
(5), and paragraph (a)(8) of that section before they apply for 
admission. The School of Medicine shall ensure that all military 
selectees meet the eligibility criteria of Sec. 242.4 (6) and (7).
    (c) Notification of conditional selection for admission. The School 
of Medicine shall notify selectees in writing of their conditional 
selection for admission, with the stipulation that it is subject to 
review and confirmation by the Service in which selectees are assigned 
to serve.
    (d) Confirmation of selectees. (1) The names and relevant 
credentials of selectees shall be referred by the School of Medicine to 
the Secretaries of the Military Departments or their designees. An 
informational copy of this action will be provided to the Assistant 
Secretary of Defense Health Affairs.
    (2) The Secretaries, or their designees, shall initiate necessary 
actions (records checks, physical examinations, and National Agency 
Checks, as required, consistent with Sec. 242.4(a)(5)) to determine 
whether or not the selected candidates are acceptable for commissioning. 
(Physical examinations for military personnel, if required, shall be 
performed at the individual's supporting military medical facility and 
reviewed by the Department of Defense Medical Examination Review Board 
(DoDMERB). Physical examinations for civilians shall be scheduled and 
reviewed by the DoDMERB, in accordance with the procedures and policies 
that agency establishes.) Secretaries of the Military Departments, or 
their designees, shall advise the School of Medicine as to the 
acceptability for commissioning of candidates within 45 days of receipt 
of referral lists, furnishing reasons for those found nonacceptable.
    (e) Notification of acceptance for admission. As soon as candidates 
are approved for commissioning by their appropriate components, they 
shall be advised in writing by the School of Medicine that they are 
unconditionally accepted for admission.

[54 FR 31335, July 28, 1989]



Sec. 242.6  Central point of contact.

    The Assistant Dean for Academic Support, USUHS, is designated as the 
central point of contact for matters pertaining to the admission 
procedures outlined in Sec. 242.5.



Sec. 242.7  Responsibilities.

    (a) The President of the University shall:
    (1) Develop and prescribe formal application procedures for 
admission to the School, consistent with the provisions of this part.
    (2) Select candidates for admission to the School of Medicine in 
accordance with the policies and procedures prescribed in this part.
    (3) Coordinate, as required, with the Military Department 
Secretaries or their designees to ensure the proper administration of 
the admissions process.
    (4) Monitor, review, and evaluate the admissions process to assure 
its effectiveness and efficiency operationally, and make recommendations 
as required for the revision of the policies and procedures herein set 
forth.
    (b) Secretaries of the Military Departments shall:
    (1) Approve/disapprove requests of military personnel who want to 
apply to the School of Medicine, as prescribed herein.
    (2) Carry out confirmatory requirements and ensure that the suspense 
for accomplishing these actions is met.
    (3) Designate a representative in their respective areas to be 
responsible for overseeing and coordinating confirmatory action 
requirements. (Names of designees and any changes in designations shall 
be furnished to the President of USUHS.)
    (4) Ensure coordination of proposed implementing regulations with 
the President, USUHS.
    (c) Assistant Secretary of Defense Health Affairs shall determine, 
in coordination with the Secretaries of the Military Departments and the 
President, USUHS, the number of spaces in each entering class to be 
allocated to the respective components.
    (d) Director, DoDMERB, shall:

[[Page 541]]

    (1) Establish necessary policies and procedures, in coordination 
with the Military Departments, for scheduling and reviewing physical 
examinations for civilian selectees, and reviewing examinations for 
military selectees.
    (2) Review and take final action on any requests for waiver of 
physical standards for admission to the School.

[54 FR 31335, July 28, 1989]



Sec. 242.8  Academic, intellectual, and personal requirements for 
admission to the first-year class.

    Admission to the School of Medicine of the Uniformed Services 
University of the Health Sciences is on a competitive basis, with 
selection predicated on:
    (a) Evidence of sound character and high motivation for a career in 
the Medical Corps of the Uniformed Services, and
    (b) Evidence of sufficient intellectual ability and preparation to 
undertake successfully the study of medicine.
    (1) Academic requirements. Recognizing that Service medicine needs 
individuals with a wide variety of interests and talents, the School of 
Medicine welcomes applications from individuals with a diversity of 
educational backgrounds. However, there are certain specific academic 
requirements that are requisite for admission. These are as follows:
    (i) College preparation. All applicants must have attained a 
baccalaureate degree from an accredited academic institution prior to 
matriculation.
    (ii) Prerequisite course work. Area of specialization in college is 
not a limiting factor in gaining admission to the School, but a strong 
foundation in the sciences basic to the study of medicine is a 
requirement for all entering students. The minimum undergraduate science 
prerequisites for entrance are:
    (a) Chemistry (inorganic or general). 1 academic year including 
appropriate laboratory.
    (b) Organic chemistry. 1 academic year including laboratory.
    (c) Mathematics. 1 academic year.
    (d) Physics. 1 academic year including laboratory.
    (e) Biology. 1 academic year including laboratory.

An academic year of course work equates to that course work which 
extends over a two-semester or three-quarter period and carries a total 
credit of between 6 to 8 semester hours or 9 to 12 quarter hours. No 
application will be considered unless the applicant has completed the 
science prerequisites or is in the process of completing the last 8 
semester hours (or 12 quarter hours) of these courses at time of making 
application.

In addition to the science requirements, all applicants must complete 6 
semester hours (or the equivalent) of college English before 
matriculating. While the foregoing represent the minimum academic 
prerequisites for admission, preference generally will be shown to 
applicants who also have had some college course work in the humanities 
and/or the social and behavioral sciences, for these disciplines 
complement the study of medicine, contributing to an understanding of 
human behavior both in sickness and health.
    (2) Testing requirements. Applicants for admission are required to 
have taken the Medical College Admission Test.
    (3) Evidence of character and motivation. Judgments about character 
and motivation will be based on letters of reference, personal 
statements, evaluation reports, personality inventories, interviews, and 
such other credentials/techniques necessary, as determined by the School 
of Medicine, to assess thoroughly the noncognitive nature and potential 
of the aspirant. The School of Medicine will take the initiative in 
gathering data upon which to make noncognitive assessments of 
applicants.



Sec. 242.9  Academic, intellectual, and personal requirements for 
admission to advanced standing.

    (a) Selection of students to advanced standing will be competitive, 
based on both cognitive and noncognitive factors. Demonstrated aptitude 
and motivation for a career in medicine in the Uniformed Services will 
be prime considerations in making admissions decisions. Only the most 
promising of candidates will be accepted, as judged by scholastic 
records, letters of recommendation, interviews, and such

[[Page 542]]

other credentials and/or appraisal techniques as may be deemed 
appropriate to use by the School of Medicine.
    (b) To be eligible academically for admission to advanced-standing, 
applicants must have successfully completed the year of medical studies 
preceding the year in which they desire advanced placement. Only 
students from fully accredited medical schools will be eligible for 
transfer.
    (c) Individuals who have received the D.D.S., D.M.D., Ph.D., D.O., 
or D.V.M. degrees, or candidates for these degrees will not be eligible 
for advanced placement in the School of Medicine at this time. They will 
only be considered for admission to the Freshman class. Advanced 
standing applicants are required to have taken the Medical College 
Admission Test.



Sec. 242.10  Effective date and implementation.

    This part will become effective immediately. Three copies of 
proposed implementing regulations shall be forwarded to the Assistant 
Secretary of Defense Health Affairs within 30 days.

[54 FR 31335, July 28, 1989]



PART 242a_PUBLIC MEETING PROCEDURES OF THE BOARD OF REGENTS, UNIFORMED 
SERVICES UNIVERSITY OF THE HEALTH SCIENCES--Table of Contents




Sec.
242a.1 Applicability.
242a.2 Definitions.
242a.3 Open meetings.
242a.4 Grounds on which meetings may be closed, or information may be 
          withheld.
242a.5 Procedure for announcing meetings.
242a.6 Procedure for closing meetings.
242a.7 Transcripts, recordings, and minutes of closed meetings.
242a.8 Effective date.

    Authority: 5 U.S.C. 552b (g); Pub. L. 94-409.

    Source: 42 FR 12853, Mar. 7, 1977, unless otherwise noted.



Sec. 242a.1  Applicability.

    These procedures apply to meetings of the Board of Regents, 
Uniformed Services University of the Health Sciences (USUHS), including 
committees of the Board of Regents.



Sec. 242a.2  Definitions.

    (a) Board or Board of Regents means the collegial body that conducts 
the business of the Uniformed Services University of the Health Sciences 
as specified in Title 10, U.S. Code 2113, consisting of:
    (1) Nine persons outstanding in the fields of health and health 
education appointed from civilian life by the President, by and with the 
advice and consent of the Senate;
    (2) The Secretary of Defense, or his designee, an ex officio member;
    (3) The surgeons general of the uniformed services, ex officio 
members; and
    (4) The Dean (President) of the University, an ex officio non-voting 
member.
    (b) Board Representative means the individual named as Executive 
Secretary by the Board, or any person officially designated by the 
Board.
    (c) Chairman means the presiding officer of the Board, designated by 
the President, as specified in Title 10, U.S. Code 2113.
    (d) Committee means any formally designated subdivision of the 
Board, consisting of as least two Board members, authorized to act on 
behalf of the Board, including, the Board's standing committees (the 
Executive, Administrative Affairs, Educational Affairs, Fine Arts and 
Gifts, and Nominating Committees) and any ad hoc committees appointed by 
the Board for special purposes.
    (e) Meeting means the deliberations of at least a majority of all 
Regents in being or for committees, the deliberations of at least the 
number of individual voting members of the Board required to take action 
on behalf of the Board, where such deliberations determine or result in 
the joint conduct or disposition of official business of the Board, but 
does not include:
    (1) Deliberations to open or close a meeting, or to release or 
withhold information, required or permitted by Sec. 242a.5 or Sec. 
242a.6;
    (2) Notation voting or similar consideration of matters whether by 
circulation of material to members individually in writing, or polling 
of members individually by telephone or telegram; and

[[Page 543]]

    (3) Instances where individual members, authorized to conduct 
business on behalf of the Board or to take action on behalf of the 
Board, meet with members of the public or staff. Conference telephone 
calls that involve the requisite number of members, and otherwise come 
within the definition, are included.
    (f) Member means a member of the Board of Regents.
    (g) Public Announcement means posting notices on the Board's public 
notice bulletin board, and mailing announcements to persons on a mailing 
list maintained for those who desire to receive notices of Board 
meetings, and who pay such fee as may be determined by the Executive 
Secretary, not to exceed $10.00 per year, to cover the costs involved in 
such distribution.
    (h) Staff includes the employees of the USUHS, other than the 
members of the Board.

[42 FR 12853, Mar. 7, 1977, as amended at 42 FR 63775, Dec. 20, 1977]



Sec. 242a.3  Open meetings.

    (a) Members shall not jointly conduct or dispose of business of the 
Board of Regents other than in accordance with these procedures. Every 
portion of every meeting of the Board of Regents or any committee of the 
Board shall be open to public observation subject to the exceptions 
provided in Sec. 242a.4.
    (b) Open meetings will be attended by members of the Board, certain 
staff, and any other individual or group desiring to observe the 
meeting. The public will be invited to observe and listen to the meeting 
but not to record any of the discussions by means of electronic or other 
devices or cameras unless approval in advance is obtained from the 
Executive Secretary. The public will not participate in the meeting 
unless public participation is invited by the Board.
    (c) The Executive Secretary shall be responsible for making physical 
arrangements that provide ample space, sufficient visibility, and 
adequate acoustics for public observation of meetings.



Sec. 242a.4  Grounds on which meetings may be closed, or information 
may be withheld.

    Except in a case where the Board or a committee finds that the 
public interest requires otherwise, the open meeting requirement set 
forth in the second sentence of Sec. 242a.3(a) shall not apply to any 
portion of a Board or committee meeting, and the informational 
disclosure requirements of Sec. Sec. 242a.5 and 242a.6 shall not apply 
to any information pertaining to such meeting otherwise required by this 
part to be disclosed to the public, where the Board or committee as 
applicable, properly determines that such portion or portions of its 
meetings or the disclosure of such information is likely to:
    (a) Disclose matters that are:
    (1) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interests of national defense 
or foreign policy; and
    (2) Properly classified pursuant to such executive order;
    (b) Relate solely to the internal personnel rules and practices of 
the USUHS;
    (c) Disclose matters specifically exempted from disclosure by 
statute (other than Title 5, U.S. Code 552), provided that such statute:
    (1) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (2) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person, privileged or confidential;
    (e) Involve accusing any person of a crime or formally censuring any 
person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (1) Interfere with enforcement proceedings;

[[Page 544]]

    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (3) Constitute an unwarranted invasion of personal privacy;
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (5) Disclose investigative techniques and procedures; or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsibile for the regulation or supervision of 
financial institutions;
    (i) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action, except that this subsection shall not apply in any instance 
where the agency has already disclosed to the public the content or 
nature of its proposed action, or where the agency is required by law to 
make such disclosure on its own initiative prior to taking final agency 
action on such proposal; or
    (j) Specifically concern the issuance of a subpoena, or USUHS 
participation in a civil action or proceeding, an action in a foreign 
court or international tribunal, or an arbitration, or the initiation, 
conduct, or disposition by the USUHS of a particular case of formal 
adjudication pursuant to the procedures in Title 5, United States Code, 
section 554 or otherwise involving a determination on the record after 
opportunity for a hearing.



Sec. 242a.5  Procedure for announcing meetings.

    (a) Except to the extent such such information is exempt from 
disclosure under the provisions of Sec. 242a.4, in the case of each 
Board or committee meeting, the Board representative, shall make public 
announcement, at least 7 days before the meeting, of the following:
    (1) Time of the meeting;
    (2) Place of the meeting;
    (3) Subject matter of the meeting;
    (4) Whether the meeting or parts thereof are to be open or closed to 
the public; and
    (5) The name and telephone number of the person designated by the 
Board or committee to respond to requests for information about the 
meeting.
    (b) The 7 day period for the public announcement required by 
paragraph (a) of this section may be reduced if a majority of the 
members of the Board or committee, as applicable, determine by a 
recorded vote that Board or committee business requires that such 
expedited meeting be called at an earlier date. The Board or committee 
shall make public announcement of the time, place, and subject matter of 
such meeting, and whether open or closed to the public, at the earliest 
practicable time.
    (c) The time or place of a meeting or deletion of subject matter may 
be changed following the public announcement required by paragraph (a) 
of this section only if the Board representative publicly announces such 
change at the earliest practicable time. Such change need not be voted 
on by the members.
    (d) The subject matter of a meeting or the determination of the 
Board or committee, as applicable, to open or close a meeting, or 
portion of a meeting, to the public, may be changed following the public 
announcement required by paragraph (a) of this section only if:
    (1) A majority of the entire voting membership of the Board of a 
majority of the entire voting membership of a committee, determines by a 
recorded vote that Board or committee business so requires and that no 
earlier announcement of the change was possible; and
    (2) The Board or committee publicly announces such change and the 
vote of each member upon such change at the earliest practicable time.
    (e) The earliest practicable time as used in this section, means as 
soon as possible, which should in few, if any, instances be no later 
than commencement of the meeting or portion in question.

[[Page 545]]

    (f) Immediately following each public announcement required by this 
section, notice of the time, place and subject matter of a meeting, 
whether the meeting is open or closed, any change in one of the 
preceding, and the name and telephone number of the person designated by 
the Board or committee to respond to requests for information about the 
meeting, shall also be submitted for publication in the Federal 
Register.



Sec. 242a.6  Procedure for closing meetings.

    (a) Action to close a meeting or portion thereof, pursuant to the 
exemptions set forth in Sec. 242a.4 shall be taken only when a majority 
of the entire voting membership of the Board or a majority of the entire 
voting membership of a committee, as applicable, vote to take such 
action.
    (b) A separate vote of the Board or committee members shall be taken 
with respect to each Board or committee meeting a portion or portions of 
which are proposed to be closed to the public pursuant to Sec. 242a.4 
or with respect to any information which is proposed to be withheld 
under Sec. 242a.4.
    (c) A single vote of the Board or committee may be taken with 
respect to a series of meetings, a portion or portions of which are 
proposed to be closed to the public, or with respect to any information 
concerning such series of meetings, so long as each meeting in such 
series involves the same particular matters and is scheduled to be held 
no more than 30 days after the initial meeting in such series.
    (d) The vote of each member shall be recorded, and may be by 
notation voting, telephone polling or similar consideration.
    (e) Whenever any person whose interests may be directly affected by 
a portion of a meeting requests that the Board or a committee close such 
portion to the public under any of the exemptions relating to personal 
privacy, criminal accusation, or law enforcement information referred to 
in Sec. 242a.4 (e), (f), and (g), the Board or committee, as 
applicable, upon request of any one of its members, shall vote by 
recorded vote whether to close such meeting. Where the Board receives 
such a request prior to a meeting, the Board's representative may 
ascertain by notation voting, or similar consideration, the vote of each 
member of the Board, or committee, as applicable, as to the following:
    (1) Whether the business of the Board or committee permits 
consideration of the request at the next meeting, and delay of the 
matter in issue until the meeting following, or
    (2) Whether the members wish to close such meeting.
    (f) Within 1 day following any vote taken pursuant to paragraphs 
(a), (b), (c), or (e), of this section, the Board or committee shall 
make publicly available a written copy of such vote reflecting the vote 
of each member on the question. If a portion of a meeting is to be 
closed to the public, the Board or committee shall, within 1 day of the 
vote taken pursuant to paragraphs (a), (b), (c), or (e) of this section, 
make publicly available a full written explanation of its action closing 
the portion together with a list of all persons expected to attend the 
meeting and their affiliation. The information required by this 
paragraph shall be disclosed except to the extent it is exempt from 
disclosure under the provisions of Sec. 242a.4.
    (g) For every meeting closed pursuant to paragraphs (a) through (j) 
of Sec. 242a.4, the General Counsel or chief legal officer of the USUHS 
shall publicly certify before the meeting that, in his or her opinion, 
the meeting may be closed to the public and shall state each relevant 
exemptive provision. A copy of such certification, together with a 
statement from the presiding officer of the meeting setting forth the 
time and place of the meeting, and the persons present, shall be 
retained by the Board as part of the transcript, recording or minutes 
required by Sec. 242a.7.



Sec. 242a.7  Transcripts, recordings, and minutes of closed meetings.

    (a) The Board of Regents shall maintain a complete transcript or 
electronic recording adequate to record fully the proceedings of each 
meeting, or portion of a meeting, closed to the public, except that in 
the case of a meeting, closed to the public pursuant to Sec. 242a.4(j), 
the Board shall maintain

[[Page 546]]

either such a transcript or recording, or a set of minutes.
    (b) Where minutes are maintained they shall fully and clearly 
describe all matters discussed and shall provide a full and accurate 
summary of any action taken, and the reasons for such actions, including 
a description of each of the views expressed on any item and the record 
of any roll call vote (reflecting the vote of each member on the 
question). All documents considered in connection with any action shall 
be identified in such minutes.
    (c) The Board shall maintain a complete, verbatim copy of the 
transcript, a complete copy of the minutes, or a complete electronic 
recording of each meeting or portion of a meeting, closed to the public, 
for a period of at least 2 years after such meeting, or until 1 year 
after the conclusion of any Board proceeding with respect to which the 
meeting or portion was held, whichever occurs later.
    (d) Public availability of records shall be as follows:
    (1) Within 10 days of receipt of a request for information 
(excluding Saturdays, Sundays, and legal public holidays), the Board 
shall make available to the public, in the offices of the Board of 
Regents, USUHS, Bethesda, Maryland, the transcript, electronic 
recording, or minutes of the discussion of any item on the agenda, or of 
any item of the testimony of any witness received at the meeting, except 
for such item or items of such discussion or testimony as the Executive 
Secretary determines to contain information which may be withheld under 
Sec. 242a.4.
    (2) Copies of such transcript, or minutes, or a transcription of 
such recording disclosing the identity of each speaker, shall be 
available at the actual cost of duplication or transcription.
    (3) The determination of the Executive Secretary to withhold 
information pursuant to paragraph (d)(1) of this section may be appealed 
to the Board. The appeal shall be circulated to individual board 
members. The Board shall make a determination to withhold or release the 
requested information within 20 days from the date of receipt of a 
written request for review (excluding Saturdays, Sundays, and legal 
public holidays).
    (4) A written request for review shall be deemed received by the 
Board when it has arrived at the offices of the Board in a form that 
describes in reasonable detail the material sought.



Sec. 242a.8  Effective date.

    This part shall become effective on March 12, 1977.



PART 242b_GENERAL PROCEDURES AND DELEGATIONS OF THE BOARD OF REGENTS 

OF THE UNIFORMED SERVICES UNIVERSITY OF THE HEALTH SCIENCES--Table 
of Contents




Sec.
242b.1 Regents.
242b.2 Meetings of the Board.
242b.3 Notice.
242b.4 Quorum.
242b.5 Voting.
242b.6 Committees.
242b.7 Officers of the University.
242b.8 Amendment of procedures--Rules of Order.

    Authority: Uniformed Services Health Professions Revitalization Act, 
10 U.S.C. 2112-17.

    Source: 42 FR 63775, Dec. 20, 1977, unless otherwise noted.



Sec. 242b.1  Regents.

    (a) History and name. The Congress of the United States in the 
Uniformed Services Health Professions Revitalization Act of 1972, 10 
U.S.C. 2112-17 (1972) created a collective body to conduct the business 
of the Uniformed Services University of the Health Sciences, and 
designated this body ``the Board of Regents of the Uniformed Services 
University of the Health Sciences,'' referred to in these procedures as 
``the Board.''
    (b) Number, duties. Section 2113 of Title 10, United States Code, 
provides:
    (1) The number of Regents on the Board;
    (2) The manner of selection of the Regents;
    (3) The terms of office of the Regents;
    (4) The powers and duties of the Regents;
    (5) The manner of selection of a Chairman of the Board;
    (6) The compensation of the Regents.

[[Page 547]]

    (c) Officers--(1) Designation--term--vacancies. (i) The officers of 
the Board shall consist of a Chairman and a Vice Chairman.
    (2) Chairman of the Board. (i) The Chairman of the Board shall 
preside at all meetings of the Board in accordance with these 
procedures.
    (ii) The Chairman of the Board shall have the power to execute on 
behalf of the Board all instruments in writing which have been 
authorized by the Board and shall exercise such other powers as may be 
conferred upon him or her from time to time by the Board.
    (3) Vice Chairman of the Board. (i) The Board of Regents shall elect 
from their own members a Vice Chairman.
    (ii) The Vice Chairman shall serve for a term of one year or until a 
successor is elected.
    (iii) The term of office of the Vice Chairman shall commence 
immediately upon election.
    (iv) If the Chairman is absent or unable to act, the Vice Chairman 
shall exercise the powers and perform the duties of the Chairman.
    (v) The Vice Chairman shall perform such other duties as may be 
directed from time to time by the Chairman and the Board.
    (vi) If both the Chairman and Vice Chairman are absent or unable to 
act, the Board shall elect a member Acting Chairman.
    (4) Executive Secretary. (i) The Board shall appoint an Executive 
Secretary, referred to in these procedures as ``the Secretary.''
    (ii) The Secretary shall have the power to perform such duties as 
generally pertain to the office and as may be conferred from time to 
time by the Board.
    (iii) The Secretary shall notify the Regents of the time and place 
of all meetings of the Board, in accordnce with these Procedures, and 
shall keep a complete record of its proceedings.
    (iv) The Secretary shall furnish to every Regent prior to each 
meeting of the Board a copy of the Minutes of the preceding meeting.
    (v) The Secretary shall give notice of the time and place of 
committee meetings, and if desired by the commitee or its chairman, the 
Secretary or an assistant shall attend the meeting and keep a record of 
the meeting.
    (vi) The Secretary shall prepare and distribute expeditiously the 
minutes of all meetings of standing committees to all Regents.
    (vii) The Secretary shall keep at the office of the University a 
copy of these General Procedures and Delegations, and the Public Meeting 
Procedures of the Board of Regents as periodically amended.
    (viii) During the Secretary's absence or inability to act, an 
Assistant Secretary, appointed by the Chairman, shall act in the 
Secretary's place.



Sec. 242b.2  Meetings of the Board.

    (a) Regular meetings. (1) The Board shall hold at least four (4) 
meetings in each annual period from October 1 to September 30.
    (2) Unless otherwise determined by the Board, meetings shall be held 
at the offices of the University, 4301 Jones Bridge Road, Bethesda, Md. 
20014.
    (b) Additional meetings. (1) Additional meetings shall be called by 
the Secretary upon the written request of three or more Regents, 
delivered to the Secretary, or upon the direction of the Chairman or of 
the Dean of the University (President).
    (2) Additional meetings of the Board shall be held at such times and 
places as shall be specified in the notice of meeting.



Sec. 242b.3  Notice.

    (a) Notice of all meetings of the Board shall be sent by the 
Secretary to each Regent by mail, telegraph, or telephone.
    (b) Mailing a notice not less than 7 days before any meeting, or 
sending a telegram not less than twenty-four hours before a meeting, 
addressed to each Regent at his or her residence or place of business; 
or actual notice by telephone to such person not less than twenty-four 
hours before the meeting, shall be sufficient notice of any meeting. The 
recital by the Secretary in the minutes that notice was given shall be 
sufficient evidence of the fact.
    (c) A Regent may waive in writing notice of any meeting either prior 
to or subsequent to the holding of the meeting.

[[Page 548]]

    (d) Public announcement of meetings shall conform to the Public 
Meeting Procedures of the Board of Regents, 32 CFR 242a.5.



Sec. 242b.4  Quorum.

    A majority of all Regents in being shall constitute a quorum of the 
Board.



Sec. 242b.5  Voting.

    (a) The concurrence of a majority of the Regents present at a 
meeting shall be necessary for the transaction of business.
    (b) Unless a written ballot is required by a Regent, no actions 
taken by the Board need be by written ballot.
    (c) The Chairman of the Board and of each Committee is entitled to 
move, second, vote, and participate fully in any session to the same 
extent as if not a presiding officer.
    (d) At the direction of the Chairman, action may be taken by a 
majority of the Regents by notation voting, by voting on material 
circulated to Regents individually or serially, or by polling of Regents 
individually or collectively by telephone or by telegram, or by similar 
procedure. Such action shall be reported by the Secretary at the next 
Board meeting.



Sec. 242b.6  Committees.

    (a) The Executive Committee shall be the one regular standing 
committee of the Board.
    (b) The Executive Committee will be composed of:
    (1) The Chairperson of the Board;
    (2) The Vice Chairperson of the Board;
    (3) The Secretary of Defense or his designee;
    (4) The Dean of the University (President); and
    (5) A member of the Board appointed by the Chairperson. The Dean of 
the University will be a non-voting member whose presence will not be 
counted for the purpose of determining a quorum at any Executive 
Committee meeting.
    (c) The Executive Committee will possess all powers of the Board of 
Regents except the power:
    (1) To change the General Procedures and Delegations;
    (2) To appoint or remove the Dean of the University (President), 
Dean of the School of Medicine, Dean of the Military Medical Education 
Institute, Chairpersons of Departments and tenured faculty;
    (3) To amend the tenure policy of the University;
    (4) To establish post doctoral, post graduate and technological 
institutes;
    (5) To establish programs in continuing medical education;
    (6) To agree to utilize Federal medical resources on a reimbursable 
basis;
    (7) To affiliate with other universities.

[54 FR 11946, Mar. 23, 1989]



Sec. 242b.7  Officers of the University.

    (a) Dean of the University. (1) The Regents will appoint a Dean of 
the University who will also be known as the President.
    (2) The President will be appointed or removed only by an 
affirmative vote of a majority of the Regents.
    (3) At meetings of the Board of Regents, the President will be 
counted for the purpose of determining the presence of a quorum but will 
not vote.
    (4) The President will be responsible for the management of the 
University and all its departments.
    (5) The President will report to the Board at each regular meeting 
on the progress of the University, and will make recommendations for 
action.
    (6) To assist in the performance of his or her duties, the President 
with the approval of the Board, will appoint, to act under the 
President's authority and direction, officers as follows:
    (i) Vice President of the University.
    (ii) Vice President for Operations of the University.
    (iii) Commandant of the University.
    (iv) Dean of the School of Medicine.
    (v) Associate Dean for Academic Affairs of the School of Medicine.
    (vi) Associate Dean for Operations of the School of Medicine.
    (vii) Associate Dean for Continuing Education of the School of 
Medicine.
    (viii) Associate Dean for Clinical and Academic Affairs.
    (ix) Dean of the Military Medical Education Institute.

[[Page 549]]

    (7) The President, with the approval of the Board, may appoint and 
prescribe the powers and duties of other officers, as he or she may deem 
proper.
    (8) If there is no one holding the office of President, the Board of 
Regents may appoint an Acting President to perform the duties of the 
President for such period of time as the Board may determine. If the 
Acting President is also a Regent, he or she will retain the powers and 
duties of a Regent while so acting.
    (b) Duties of officers--(1) Vice President of the University. (i) 
The Vice President of the University will assist the President and will 
perform such duties as may be directed from time to time by the 
President.
    (ii) In the absence of the President, the Vice President will act 
for the President.
    (2) Vice President for Operations of the University. (i) The Vice 
President for Operations will be responsible for the support of the 
educational and research activities of the University to include but not 
limited to:
    (A) Financial Management;
    (B) Building Services and Materiel Acquisition;
    (C) Military Personnel;
    (D) Civilian Personnel;
    (E) Computer Operations; and
    (F) Contracting.
    (ii) He or she will be responsible for the preparation of the 
University budget estimates and program submission presentations for the 
approval of the Board.
    (iii) He or she will recommend to the President persons for 
appointment as the Assistant Vice President for Administration and such 
other administrative positions as he or she deems proper.
    (iv) For reporting purposes, Financial Management and Computer 
Operations will report directly to the Vice President for Operations; 
the Civilian Personnel Office, Military Personnel Office, Building 
Services and Material Acquisition, and Contracting will report to the 
Assistant Vice President for Administration, who in turn shall report to 
the Vice President for Operations.
    (v) Serves as Acting President in absence of President and Vice 
President.
    (3) Commandant of the University. (i) The Commandant will assist the 
President of the University in planning, developing, and directing the 
military activities and functions of the University.
    (ii) In the absence of the President; Vice President; Vice President 
for Operations; Dean, School of Medicine; and the Dean, MMEI, he or she 
will act for the President.
    (4) Dean of the School of Medicine. (i) The Dean of the School of 
Medicine will be responsible for planning, directing, and managing the 
activities of the School of Medicine.
    (ii) He or she will recommend to the President and to the Board, 
personnel for faculty appointments and will perform such duties as may 
be directed from time to time by the Board or the President.
    (iii) He or she will recommend to the President persons for 
appointment as the Associate Dean for Operations, Associate Dean for 
Academic Affairs, Associate Dean for Continuing Education, Associate 
Deans for Clinical and Academic Affairs, and such other administrative 
positions as he or she deems proper.
    (iv) For reporting purposes, the Associate Dean for Operations, 
Associate Dean for Academic Affairs, Associate Dean for Continuing 
Education, Associate Deans for Clinical and Academic Affairs, Assistant 
Dean for Clinical Sciences, Assistant Dean for Graduate Medical 
Education Liaison, and Assistant Dean for Student Affairs will report 
directly to the Dean, School of Medicine.
    (5) Associate Dean for Academic Affairs of the School of Medicine. 
(i) The Associate Dean for Academic Affairs will be responsible for the 
overall management and supervision of the University's Basic Sciences 
Departments, Clinical Sciences Departments, and the Academic Sections. 
The Assistant Dean for Graduate Education will report to the Associate 
Dean for Academic Affairs.
    (ii) In the absence of the Dean, he or she will act for the Dean.
    (6) Associate Dean for Operations of the School of Medicine. (i) The 
Associate Dean for Operations will be responsible

[[Page 550]]

for the support of the education and research activities of the School 
of Medicine to include but not limited to:
    (A) Grants Management;
    (B) Teaching and Research Support;
    (C) Learning Resource Center; and
    (D) Laser Biophysics Center.
    (ii) He or she will be responsible for the preparation of the School 
of Medicine budget estimates and program submission presentations for 
the approval of the Board.
    (iii) In the absence of the Dean and Associate Dean for Academic 
Affairs, he or she will act for the Dean.
    (7) Associate Dean for Continuing Education of the School of 
Medicine. (i) The Associate Dean for Continuing Education will be 
responsible for all continuing education at the University to include 
its accreditation.
    (ii) The Associate Dean for Continuing Education will report to the 
Dean, School of Medicine, or to the individual acting on behalf of the 
Dean.
    (8) Associate Deans for Clinical and Academic Affairs. (i) The 
military medical officer next in line to succeed to command in each of 
the major affiliated Military Medical Centers, i.e., Walter Reed Army 
Medical Center, National Naval Medical Center, and Malcolm Grow U.S. Air 
Force Medical Center, respectively, will be the ex-officio incumbent of 
the position: Associate Dean for Clinical and Academic Affairs.
    (ii) The respective Associate Dean for Clinical and Academic Affairs 
for each designated Center will exercise the authority and 
responsibilities of that position subject to respective Command 
regulations and policies. The incumbents will serve in a co-equal 
administrative status to each other within the School of Medicine's 
scope of authority and responsibility. Military medical officers will be 
appointed ex-officio and will serve in additional duty status in the 
Associate Dean for Clinical and Academic Affairs position in addition to 
their regular assignment.
    (iii) Each Associate Dean for Clinical and Academic Affairs will be 
responsible to the Dean, School of Medicine, for central coordination, 
supervision, and implementation of School of Medicine/Uniformed Services 
University of the Health Sciences academic and investigative/research 
activities performed within his/her respective Military Medical Center 
Command. Additionally, each Associate Dean for Clinical and Academic 
Affairs will represent the interests of his/her affiliated Medical 
Center Command within the School of Medicine and serve as principal 
advisor to the Dean, School of Medicine, for all professional and 
military matters within that command which are relevant to the School of 
Medicine or the Uniformed Services University of the Health Sciences.
    (9) Dean of the Military Medical Education Institute. (i) The Dean 
of the Military Medical Education Institute will be responsible for 
planning, directing, and managing the activities of the Military Medical 
Education Institute.
    (ii) He or she will recommend to the President and to the Board, 
personnel for faculty appointments and will perform such duties as may 
be directed from time to time by the Board or the President.
    (iii) He or she will recommend to the President persons for 
appointment to such administrative positions as he or she deems proper.

[54 FR 11947, Mar. 23, 1989]



Sec. 242b.8  Amendment of procedures--Rules of Order.

    (a) Amendments. These general procedures and delegations may be 
amended at any meeting of the Board of Regents by the affirmative vote 
of two-thirds (\2/3\) of the Regents present at the meeting; provided, 
however, that notice of proposed amendments and the text of such 
amendments have been distributed at the preceding meeting and have 
accompanied the notice of the current meeting, or there is a duly 
completed waiver of notice.
    (b) Order of business. The order of business shall be at the 
discretion of the Chairman unless otherwise specified by the Board.
    (c) Rules of Order. In the determination of all questions of 
parliamentary usage, the decision of the presiding officer shall be 
based upon the latest available revision of Robert's Rules of Order.

[[Page 551]]



PART 243_INTERGOVERNMENTAL COORDINATION OF DoD FEDERAL DEVELOPMENT 
PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
243.1 Purpose.
243.2 Applicability and scope.
243.3 Definition.
243.4 Policy.
243.5 Responsibilities.
243.6 Procedures.

    Authority: E.O. 12372 (July 14, 1982; 47 FR 30959); section 401(b), 
Intergovernmental Cooperation Act of 1968 (31 U.S.C. 6506(b)).

    Source: 48 FR 29141, June 24, 1983, unless otherwise noted.

    Editorial Note: Appendixes A through D are not included in Part 243, 
below. For the texts of the appendixes, see 48 FR 29142, June 24, 1983.



Sec. 243.1  Purpose.

    This rule under E.O. 12372 and 31 U.S.C. 6506 et seq., updates 
policies, assigns responsibilities, and prescribes procedures for an 
intergovernmental process to assist coordination of appropriate DoD 
Federal development programs and activities in the United States with 
State and local governments and Federal agencies, and to encourage state 
and local governments and Federal agencies to coordinate their programs 
and activities with the Department of Defense.



Sec. 243.2  Applicability and scope.

    (a) This rule applies to the Office of the Secretary of Defense, the 
Military Departments (excluding the civil works function of the U.S. 
Army Corps of Engineers) and the Defense Agencies (hereafter referred to 
collectively as ``DoD Components'').
    (b) Neither E.O. 12372 nor this rule are intended to create any 
right or benefit enforceable at law by a party against the Department of 
Defense or its officials.
    (c) This rule covers all programs and activities developed by DoD 
Components for military construction (as defined in DoD Instruction 
7040.4), acquisition of real property, substantial changes in existing 
use of military installations and real property, and disposal of real 
property that may affect state and local government or other Federal 
agency community development programs and activities, and state, local, 
and other Federal agency programs and activities that may affect DoD 
activities.
    (d) A list of the DoD programs and activities subject to E.O. 12372 
is at appendix A. An illustrative list of other Federal programs and 
activities that may affect the Department of Defense is at appendix B.



Sec. 243.3  Definition.

    State. Any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 243.4  Policy.

    It is the policy of the Department of Defense to promote an 
intergovernmental partnership and a strengthened Federalism by relying 
on state processes and on state, areawide, regional, and local 
coordination for review of proposed DoD Federal development; and to 
encourage the opportunity to review other agency programs and activities 
that may affect the Department of Defense.



Sec. 243.5  Responsibilities.

    (a) The Executive Secretary to the Secretary of Defense, having been 
designated by the Secretary of Defense as the DoD intergovernmental 
coordination point of contact, shall act as the focal point for all 
matters relating to E.O. 12372.
    (b) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) (ASD(MRA&L)) shall develop policy and shall:
    (1) Have overall management responsibility for intergovernmental 
coordination of DoD Federal development programs and activities,
    (2) Monitor the implementation of E.O. 12372 within the Department 
of Defense.
    (c) The Heads of DoD Components shall:
    (1) Establish and maintain an intergovernmental coordination 
management process concerning DoD Federal

[[Page 552]]

development programs and activities described in appendix A.
    (2) Monitor the application of policies, responsibilities, and 
procedures contained in this rule within their subordinate elements.
    (3) Designate an official to be the point of contact for 
intergovernmental coordination and review matters covered by this rule 
and report his or her name, position, and office to the ASD(MRA&L).
    (4) Develop procedures that will ensure that a record of state 
comments, reviews, determinations, recommendations, and the status of 
programs and activities are maintained.
    (5) Designate an official, in accordance with appendix C, who shall 
serve as a DoD liaison representative to the states in the respective 
Federal regions for all DoD intergovernmental coordination matters. The 
identification of the liaison representatives shall be provided to the 
ASD(MRA&L) who shall publish a directory of liaison representatives in 
the Federal Register. The liaison function shall be in addition to the 
representative's regular duties.



Sec. 243.6  Procedures.

    (a) DoD Components shall establish and maintain an intergovernmental 
coordination management process, reflected in a cooperative agreement 
when feasible, to achieve full consultation with state, regional, and 
local entities for those programs and activities covered by this rule. 
DoD Components shall encourage reciprocal actions with regard to the 
State, regional, and local programs and activities.
    (b) DoD Components shall establish and maintain an inter-agency 
coordination management process to ensure their development programs and 
activities are consistent and compatible with the development actions of 
Federal agencies operating at the local levels. DoD Components shall 
encourage reciprocal actions by other Federal agencies with regard to 
their programs and activities. Unresolved conflicts shall be brought to 
the attention of the ASD(MRA&L).
    (c) DoD Components that conduct activities or operate installations 
that may be affected by the programs and activities of Federal agencies 
shall take part in the community planning process by providing 
information, policy, and position statements on those programs and 
activities to the agencies concerned.
    (d) The degree of public interest in a proposed program or activity 
shall be considered when deciding whether the Congress and the public 
shall be notified before offering information for comment as prescribed 
in this rule.
    (e) In an emergency, provisions of this rule may be waived by the 
Secretary of the Military Department concerned. Such instances will be 
reported to the ASD(MRA&L).
    (f) This rule does not affect normal cooperative community planning 
or coordination relationships between DoD installations and surrounding 
communities.
    (g) Further procedures for DoD Federal development programs are 
prescribed at appendix D.



PART 245_PLAN FOR THE SECURITY CONTROL OF AIR TRAFFIC AND AIR NAVIGATION 
AIDS (SHORT TITLE: SCATANA)--Table of Contents




Sec.
245.1 Foreword.
245.2 Explanation of terms.
245.3 The SCATANA Plan.
245.4 Application of Emergency Security Control of Air Traffic (ESCAT).
245.5 Implementation of Security Control of Air Traffic and Air 
          Navigation Aids.
245.6 Tactical Air Movement Plans.
245.7 Extract of Tactical Air Movement Plan.
245.8 Wartime Air Traffic Priority List (WATPL).
245.9 Procedures for movement of air traffic.
245.10 SCATANA testing.
245.11 Authentication.

    Authority: 5 U.S.C. 301, 552.

    Source: 41 FR 9322, Mar. 4, 1976, unless otherwise noted.



Sec. 245.1  Foreword.

    (a) This part is promulgated in furtherance of the Federal Aviation 
Act of 1958, as amended, the Communications Act of 1934, as amended, and 
Executive Order 11490, and supersedes: Plan for the Security Control of 
Air Traffic and Air Navigation Aids--June 1971.

[[Page 553]]

    (b) This part defines the responsibilities of the Federal Aviation 
Administration (FAA), the Federal Communications Commission (FCC) and 
the appropriate military authorities for the security control of civil 
and military air traffic, and control of federal and non-federal air 
navigation aids.



Sec. 245.2  Explanation of terms.

    For the purpose of this part and supporting documents, the following 
explanations apply:
    (a) Air defense emergency. An emergency condition which exists when 
attack upon the continental United States, Alaska, Canada, or U.S. 
installations in Greenland by hostile aircraft or missiles is considered 
probable, is imminent, or is taking place.
    (b) Air defense identification zone. Airspace of defined dimensions 
within which the ready identification, location and control of aircraft 
is required.
    (c) Air navigation aid (NAVAIDS). (1) Federal NAVAIDS. VOR, VORTAC, 
TACAN and LORAN stations owned and operated by an agency of the Federal 
Government such as the FAA, Military Services and United States Coast 
Guard.
    (2) Non-Federal NAVAIDS. VOR, VORTAC and TACAN stations licensed by 
the FCC.
    (d) Appropriate military authorities. Within the NORAD area of 
responsibility--CINCNORAD AND NORAD region commanders. CINCNORAD has 
delegated all actions associated with the appropriate military authority 
to NORAD region commanders. Outside the NORAD area of responsibility--
the Commander in Chief, or his designated representative, of unified or 
specified commands for U.S. areas located within their area of 
responsibility.
    (e) Defense area. Any airspace of the United States (other than that 
designated as an ADIZ) in which the control of aircraft is required for 
national security.
    (f) Defense emergency. An emergency condition which exists when:
    (1) A major attack is made upon U.S. forces overseas, or allied 
forces in any area, and is confirmed either by the commander of a 
unified or specified command or higher authority.
    (2) An overt attack of any type is made upon the United States and 
is confirmed either by the commander of a command established by the 
Secretary of Defense or higher authority.
    (g) Dispersal. Relocation of aircraft to predesignated dispersed 
operating bases for the purpose of increasing survivability.
    (h) Diversion. The intentional change of a flight from its intended 
destination for operational or tactical reasons.
    (i) Emergency Security Control of Air Traffic (ESCAT) Rules. 
Emergency rules for the security control of air traffic prior to the 
declaration of Air Defense Emergency (see Sec. 245.4).
    (j) FAA Region. A geographical subdivision of the area for which the 
FAA is responsible.
    (k) Implement SCATANA. The phrase used to direct FAA to commence 
those actions required in the SCATANA plan (see Sec. 245.5).
    (l) Nontactical air traffic. Civil or military flights other than 
tactical air traffic.
    (m) North American Air Defense Command (NORAD). An integrated United 
States--Canadian command. NORAD includes, as component commands, the 
United States Air Force Aerospace Defense Command and the Canadian 
Forces Air Defense Command.
    (n) NORAD Region. A geographical subdivision of the area for which 
NORAD is responsible.
    (o) Rerouting. The intended deviation of a flight from its original 
course without changing its destination.
    (p) SARDA. State and Regional Disaster Airlift. A plan for the use 
of nonair carrier aircraft during a national emergency.
    (q) SCATANA. The short title for the joint DoD/DOT/FCC plan for the 
Security Control of Air Traffic and Air Navigation Aids.
    (r) Security control authorization. Military authorization for an 
aircraft to take off when ESCAT is applied or SCATANA has been 
implemented. (See Sec. Sec. 245.5 and 245.8).
    (s) Tactical air traffic. Military flights actually engaged in 
operational missions against the enemy, flights engaged in immediate 
deployment for a

[[Page 554]]

combat mission, and preplanned combat and logistical support flights 
contained in Emergency War Plans.
    (t) United States. The several states, the District of Columbia, the 
Commonwealth of Puerto Rico, and the several territories and possessions 
of the United States (including areas of air, land, or water 
administered by the United States under international agreement), 
including the territorial waters and the overlying airspace thereof.
    (u) Wartime Air Traffic Priority List (WATPL). The list comprises 
eight priorities designed to control the volume of air traffic when 
SCATANA has been implemented. (See Sec. Sec. 245.5, 245.6 and 245.8).
    (v) The use of the words ``will'' and ``shall.'' For the purpose of 
this part, use of the words will and shall denotes mandatory compliance 
by the affected persons or agency(ies).
    (w) List of Acronyms and Abbreviations.

ADIZ--Air Defense Identification Zone.
ARTCC--Air Route Traffic Control Center.
ATC--Air Traffic Control.
CINCNORAD--Commander in Chief North American Air Defense.
CRAF--Civil Reserve Air Fleet.
DoD--Department of Defense.
DVFR--Defense (ADIZ) Visual Flight Rules.
ESCAT--Emergency Security Control of Air Traffic.
EWO--Emergency War Orders.
FAA--Federal Aviation Administration.
FCC--Federal Communications Commission.
ICAO--International Civil Aviation Organization.
IFR--Instrument Flight Rules.
JCS--Joint Chiefs of Staff.
LORAN--A hyperbolic system of navigation, i.e., LORAN-A and LORAN-C 
systems of navigation.
NAVAID--Navigation Aid.
NORAD--North American Air Defense.
SAC--Strategic Air Command.
SARDA--State and Regional Disaster Airlift.
SCATANA--Security Control of Air Traffic and Air Navigation Aids.
TACAN--Tactical Air Navigation.
VFR--Visual Flight Rules.
VHF--Very High Frequency.
VOR--VHF Omnirange.
VORTAC--VHF Omnirange/Tactical Air Navigation.
WASP--War Air Service Program.
WATPL--Wartime Traffic Priority List.



Sec. 245.3  The SCATANA Plan.

    (a) Purpose. The purpose of this part is to establish 
responsibilities, procedures and instructions for the security control 
of civil and military air traffic and NAVAIDS which will provide for the 
most effective use of airspace under various emergency conditions.
    (b) Authority. (1) The Joint Chiefs of Staff directives which 
outline NORAD responsibilities for the development of plans and policies 
in concert with the FAA and FCC for the establishment of a system for 
identification and security control of air traffic and air NAVAIDS.
    (2) Federal Aviation Act of 1958, as amended.
    (3) Communications Act of 1934, as amended.
    (4) Executive Order 11490.
    (5) The National Security Act of 1947, as amended.
    (c) Scope. This part applies to all United States territory over 
which the FAA has air traffic control jurisdiction. For the purpose of 
this part, the appropriate military authorities within this territory 
are as follows:
    (1) For the NORAD area of responsibility, NORAD region commanders 
have been designated as appropriate military authority by CINCNORAD.
    (2) Outside the NORAD area, the commander, or his designated 
representative, of the unified-specified command exercising operational 
control over the area.
    (d) General description of the plan. This part is intended to meet 
two types of situations. These are outlined below, together with a 
general summary of the actions required.
    (1) In the first situation, an emergency may develop which does not 
meet the criteria for the declaration of a Defense Emergency or Air 
Defense Emergency, but in the interests of hemispheric and national 
security requires identification and control of all aircraft operating 
in the defense area, its coastal approaches or any parts of these areas. 
Under such conditions, the following actions, which are described in 
more detail in Sec. 245.3, will be taken:
    (i) The appropriate military authority will direct the FAA Air Route 
Traffic Control Center (ARTCC) concerned to apply Emergency Security 
Control

[[Page 555]]

of Air Traffic (ESCAT) in the affected area.
    (ii) The ARTCC will advise all aircraft operating under its control 
and relay ESCAT implementation instructions to appropriate aeronautical 
facilities within its area that ESCAT rules have been applied and will 
then issue any special security instructions which are required to 
identify, locate and ensure immediate control of all air traffic.
    (iii) When ESCAT is applied, all aircraft must file IFR or DVFR 
flight plans and comply with the special security instructions issued. 
These instructions may require diverting or rerouting airborne flights 
and, using a system of security control authorizations, restrictions to 
proposed flights not already airborne.
    (2) In the second situation, an emergency will have arisen which has 
resulted in the declaration of Defense Emergency outside the NORAD area, 
Air Defense Emergency within the NORAD area, or both of these. Under 
such conditions the following actions, described in detail in Sec. 
245.5, will be taken:
    (i) The appropriate military authority will direct the FAA ARTCC 
concerned to implement Security Control of Air Traffic and Air 
Navigation Aids (SCATANA).
    (ii) The ARTCC will relay SCATANA implementation to appropriate 
aeronautical facilities, will direct all VFR traffic under its control 
to land and file an IFR/ DVFR flight plan, and will implement other 
directions specified by the appropriate military authority. These may 
include grounding, diversion and other restrictions to flight, plus the 
control of navigation aids.
    (iii) Aircraft movements will be controlled by the use of the WATPL 
except for specific exceptions which will be controlled by using a 
Security Control Authorization.
    (iv) The NORAD Region in its transmission of SCATANA air traffic 
control instructions to the ARTCC will clearly state which WATPL Numbers 
are authorized to operate. This information will also include any 
special authorizations for operations under Security Control 
Authorizations procedures (see Sec. 245.8).
    (e) Amplifying Instructions--(1) Interference with normal air 
traffic. This will be minimized, consistent with the requirement for 
operation of the air defense system.
    (2) Supplements for essential civil air operations. Appropriate 
Unified-Specified commands, in collaboration with the FAA region 
directors will prepare annexes and agreements supplementing this plan 
for their area of responsibility. These supplements are to consider the 
special requirements of organized civil defense and disaster relief 
flights, agricultural and forest fire flights, border patrol flights and 
other essential civil air operations to the end that maximum use of 
these flights, consistent with air defense requirements will be made 
when SCATANA and ESCAT are in effect.
    (3) Vital military flights to have priority. Military air operations 
vital to national defense are to be given priority over all other 
military and civil aircraft through procedural handling by the Air 
Traffic Control (ATC) systems as specified in coordinated agreements or 
authorizations for particular operations (see Sec. 245.8).
    (4) One Military authority to direct ARTCCs. In consonance with this 
plan, appropriate military authorities will direct the extent of 
security control of air traffic and air navigation aids as required by 
the military situation. Such directions will be issued to appropriate 
FAA ARTCCs for implementation. The area of responsibility of the 
appropriate military authority may not be congruent with ARTCC 
boundaries, especially in the NORAD area where one ARTCC's boundaries 
may lie within two or more NORAD regions. To prevent confusion, 
agreements will be developed between appropriate military authorities 
and the ARTCCs concerned to ensure that each ARTCC receives direction 
from one military authority only. Unless operational requirements 
dictate otherwise, directed SCATANA actions will be consistent 
throughout an individual ARTCC area.
    (5) Tactical air movements plans. To assist appropriate military 
authorities in making a preliminary assessment of wartime air traffic 
patterns and to simplify the transition to SCATANA

[[Page 556]]

operations, major commands are to coordinate the air traffic movement 
section of their Emergency War Plans (including dispersal and 
evacuation) and preposition flight plan information with appropriate 
military authorities. This authority is the NORAD region commander 
within the NORAD area of responsibility. Detailed requirements are 
explained in Sec. 245.6.
    (6) Testing procedures. To insure that implementing actions can be 
taken expeditiously, SCATANA tests will be conducted periodically in 
accordance with Sec. 245.10.
    (7) Dispersal actions. Prior to or subsequent to the declaration of 
a Defense Emergency or an Air Defense Emergency, there may be a 
requirement to disperse civil and military aircraft for their 
protection. If such dispersal plans are implemented when any part of 
this plan has been placed in effect, operations will be in accordance 
with the requirements of that portion of the SCATANA plan which is in 
effect. If any part of the SCATANA plan is ordered while dispersal is in 
progress, dispersal operations will be revised as required to comply 
with SCATANA.
    (8) Communications. Direct communications are authroized between 
appropriate agencies and units for the purpose of coordinating and 
implementing the procedures in this plan.
    (9) Review and revision. All concerned agencies are encouraged to 
continuously monitor this plan for adequacy and currency. Hq NORAD, 
acting as executive agent for DoD, will process and distribute 
administrative and organizational changes as they occur. However, this 
plan will be reviewed at least once every two years by FAA, FCC, and 
NORAD and reissued or changed as required. Recommended changes should be 
forwarded to:

Headquarters, North American Air Defense Command.
Ent Air Force Base, Colorado 80912.

    (f) Responsibilities. (1) The Commander in Chief, NORAD will:
    (i) Establish the military requirements for the Security Control of 
Air Traffic and Air Navigation Aids.
    (ii) Coordinate with the Administrator, FAA, and the Defense 
Commissioner, FCC, as appropriate, regarding the establishment of 
procedures for implementation.
    (2) The Administrator, FAA will:
    (i) Promulgate the necessary FAA directives/plans, including special 
ATC procedures to implement this plan.
    (ii) Coordinate with appropriate military authorities prior to the 
establishment of procedures for this plan.
    (iii) Maintain liaison with appropriate NORAD region commanders 
through appropriate FAA offices.
    (iv) Administer this plan in accordance with requirements 
established by the Commander in Chief, North American Air Defense 
Command.
    (v) Collaborate with the FCC in establishing procedures for control 
of non-Federal NAVAIDS as defined in this plan.
    (3) Federal Communications Commission will:
    (i) Engage in rule making or other actions as appropriate in support 
of this plan.
    (ii) Collaborate with the FAA in establishing procedures for control 
on non-Federal NAVAIDS as defined in this plan.
    (4) Appropriate Military Authorities will:
    (i) Direct the control of NAVAIDS (VOR, VORTAC, TACAN and LORAN) in 
their areas, as required.
    (ii) Issue security control instructions to appropriate FAA region/
ARTCC as necessary to insure performance of their air defense mission.
    (iii) Maintain liaison with appropriate FAA regional directors and 
FCC Regional Liaison Officers.
    (iv) Conduct tests of this plan in coordination with the FAA and 
FCC.
    (v) Collaborate with the FAA regional director and FCC Regional 
Liaison Officer in making supplemental agreements to this plan.
    (5) The FAA Regional Directors will:
    (i) Assure FAA participation with the NORAD region commanders in the 
testing of this plan in the NORAD region areas.
    (ii) Ensure dissemination of information and instructions concerning 
this plan within their areas of responsibility to civil and military 
aeronautical facilities and civil pilots.
    (iii) Place in effect procedures outlined in this plan in accordance 
with

[[Page 557]]

requirements established by appropriate military authorities.
    (iv) Assist appropriate military authorities in making supplemental 
agreements to this plan as may be required.
    (6) The FCC Regional Liaison Officers will:
    (i) Maintain liaison with the NORAD region commanders and FAA 
regional directors with regard to participation of FCC licensed 
aeronautical navigational aids in this plan.
    (ii) Disseminate information and instructions concerning this plan 
to FCC licensed navigational aids affected by this plan.
    (iii) Assist the NORAD region commanders in making such supplemental 
agreements to this plan as may be required.
    (7) Commanders of Responsible Major Commands will:
    (i) Ensure that the air traffic movement sections of the Emergency 
War Plans are coordinated with appropriate military authorities.
    (ii) Ensure that flight plans in support of their coordinated 
Emergency War Plans are prepositioned with appropriate military 
authorities and the FAA. (See Sec. 245.6).
    (iii) Identify specific NAVAIDS (VOR, VORTAC, TACAN and LORAN) which 
are essential to support contingency operations of assigned forces 
during implementation of SCATANA. The appropriate military authority 
will, except under actual emergency air defense situations, ensure that 
such air NAVAIDS within their area of responsibility remain in 
operation. Control of LORAN C will be in accordance with the JCS Master 
Navigation Plan (SM 525-XX). If actual emergency air defense situations 
require shutdown of these air NAVAIDS, the appropriate military 
authority will immediately notify the respective commander of the 
affected major command of the shutdown.



Sec. 245.4  Application of Emergency Security Control of Air Traffic 
(ESCAT).

    (a) Situation. Emergency conditions exist which threaten national 
security but do not warrant the declaration of Defense Emergency, Air 
Defense Emergency or the control of air NAVAIDS.
    (b) Intention. To provide for the most effective use of airspace in 
the affected area by:
    (1) Ensuring that the position of all friendly air traffic is known 
and can be contacted by radio, if necessary.
    (2) Controlling the density of air traffic operating in airspace 
critical to the conduct of air defense operations.
    (c) Application. (1) The appropriate military authority will take 
the following actions:
    (i) Direct the affected ARTCCs to apply ESCAT.
    (ii) Specifically define the affected area.
    (iii) Define the types of restrictions to be placed in effect. These 
may require the diverting and rerouting of traffic, the restricting of 
traffic to certain areas or corridors, and the initiating of a 
requirement to obtain a Security Control Authorization prior to take-
off.
    (iv) Within NORAD, the region commander will advise CINCNORAD who 
will then advise the Administrator, FAA and the Defense Commissioner, 
FCC, that ESCAT has been applied. Outside NORAD the appropriate military 
authority will advise the Administrator, FAA and the Defense 
Commissioner, FCC directly. When time is vital notification may occur 
after ESCAT has been implemented.
    (v) Direct the appropriate ARTCCs to relax or terminate restrictions 
as the tactical situation allows.
    (2) ARTCCs will take the following actions when directed to apply 
ESCAT:
    (i) Disseminate ESCAT instructions and restrictions received to air 
traffic, civil and military air traffic control facilities, flight 
service stations and other appropriate aeronautical facilities.
    (ii) Impose the restrictions on air traffic as directed by the 
appropriate military authority. The restrictions will automatically 
include instructions for all VFR traffic to land at the nearest suitable 
airport and file an IFR/DVFR flight plan.
    (iii) Civil and military air traffic control facilities, and other 
aeronautical facilities will disseminate to air traffic and aircraft 
operators, and will implement, those instructions and restrictions 
received from the ARTCCs. When

[[Page 558]]

an IFR or DVFR flight plan has been filed, it will be examined by the 
appropriate aeronautical facility to ensure that it conforms with the 
ESCAT restrictions placed in effect by the appropriate military 
authority. When a flight plan does conform with the ESCAT restrictions, 
the appropriate aeronautical facility will grant a Security Control 
Authorization and the flight can then be given take-off clearance. When 
a flight plan does not conform with the ESCAT restrictions, a Security 
Control Authorization will not be given and take-off clearance will be 
denied.
    (iv) The pilot in command will take the following actions when ESCAT 
is applied:
    (a) If airborne, comply with the instructions issued by the 
appropriate aeronautical facility.
    (b) If not airborne, file an IFR or DVFR flight plan prior to take-
off and comply with the instructions issued by the appropriate 
aeronautical facility.
    (c) Aircraft which are not radio equipped may not file an IFR or 
DVFR flight plan and will not be permitted to operate in areas affected 
by ESCAT.



Sec. 245.5  Implementation of Security Control of Air Traffic and Air 
Navigation Aids.

    (a) Situation. Three types of situations may require the 
implementation of SCATANA.
    (1) In the first of these, an emergency has arisen which has 
resulted in the declaration of an Air Defense Emergency within the NORAD 
area. Under this condition SCATANA will be automatically implemented.
    (2) In the second situation, which applies only to NORAD, a NORAD 
region commander may direct implementation of SCATANA for his region 
when his region or an adjacent region is under attack and Air Defense 
Emergency has not yet been declared.
    (3) In the third situation, an emergency has arisen which has 
resulted in the declaration of a Defense Emergency outside the NORAD 
area. Under this condition, SCATANA may be considered for 
implementation.
    (b) Intention. To provide for the most effective use of airspace by 
aircraft of civil and military agencies by:
    (1) Exercising security control of civil and military aircraft 
entering, departing or moving within the U.S. areas and their coastal 
approaches.
    (2) Selectively limiting air traffic, consistent with air defense 
requirements.
    (3) Exercising control over the following air navigation systems: 
VOR, VORTAC, TACAN and LORAN.
    (c) Implementation. (1) The appropriate military authority will take 
the following actions:
    (i) Direct the appropriate ARTCC to implement SCATANA.
    (ii) Specify what restrictions are to be implemented, such as:
    (a) Routing restrictions on flights entering or operating within 
appropriate portions of the defense area.
    (b) Restrictions for the volume of air traffic within the defense 
area, using the WATPL (See Sec. 245.8) and Security Control 
Authorizations.
    (c) Altitude limitations on flight operations in selected areas.
    (d) Special instructions concerning the control of accurate 
navigation aids which permit their use for friendly aircraft operations. 
This includes continued operation, as long as the actual air defense 
situation permits, of those air NAVAIDS essential to support other major 
command contingency operations.
    (e) Confirmation or modification of previous instructions which may 
have been implemented with the application of ESCAT.
    (iii) Revise or remove restrictions to the movement of air traffic 
and control of air navigation aids as the tactical situation permits.
    (2) ARTCCs will take the following actions when directed to 
implement SCATANA:
    (i) Disseminate SCATANA implementation instructions to civil and 
military air traffic control facilities and other appropriate 
aeronautical facilities.
    (ii) Impose the restrictions on air traffic as directed by the 
appropriate military authority. The restrictions will automatically 
include instructions for all VFR traffic to land at the nearest suitable 
airport and file an IFR or DVFR flight plan. Landing, diversion or 
dispersal of traffic, when ordered,

[[Page 559]]

will be to airports outside of metropolitan areas or likely target 
complexes whenever possible. Instructions will be passed over normal 
air/ground/air radio channels.
    (iii) As directed by the appropriate military authority, implement 
the control of VOR, VORTAC, TACAN, and LORAN as follows:
    (a) Shut down the above navigation aids in accordance with the 
military command/FAA region supplemental agreements. These shall permit 
time to land/disperse airborne aircraft, and shall provide for the 
extension of such times when the air traffic situation dictates.
    (b) Aids which require more than five minutes control time shall be 
shut down as soon as possible, except when directed otherwise by the 
appropriate military authority, or unless such aids are essential for 
the regulation and control of existing air traffic.
    (c) Direct the control of air navigational aids to ensure that 
required aids, as indicated in flight plans, will be available for 
authorized aircraft flights.
    (iv) When directed to reduce or remove SCATANA restrictions, 
authorize resumption of air traffic and operation of air navigation aids 
as specified by the appropriate military authority.
    (3) Civil and military air traffic control facilities, and other 
appropriate aeronautical facilities will:
    (i) Maintain the current SCATANA ACTION Form for that facility at 
appropriate operating positions.
    (ii) When SCATANA is implemented or terminated, take the actions 
indicated on the facility's SCATANA ACTION Form.
    (iii) Maintain current information on the status of restrictions 
imposed on air traffic.
    (iv) Approve or disapprove filed flight plans in accordance with 
current instructions received from the ARTCCs. Approval will indicate 
that the flight is permitted under the WATPL priority currently in 
effect or that the flight has been granted a Security Control 
Authorization.
    (v) Forward flight plans and approval requests to the ARTCC as 
required.
    (vi) Disseminate instructions and restrictions to air traffic as 
directed by the ARTCCs.
    (4) The pilot in command will conform to security control 
instructions as follows:
    (i) IFR flights--comply with instructions received from the 
appropriate aeronautical facility.
    (ii) VFR flights--land at the nearest suitable airport when so 
directed.
    (iii) Aircraft on the ground--file an IFR or DVFR flight plan with 
the proper FAA facility and receive approval prior to departure.



Sec. 245.6  Tactical Air Movement Plans.

    (a) Situation. In a situation when Emergency War plans and other 
contingency plans are being implemented, the large volume of tactical 
air traffic generated is likely to result in conflicting requirements 
for the available airspace. It is obvious that such conflicts should be 
minimized in order to prevent saturation of the air defense system, yet 
at the same time permit the orderly execution of the various contingency 
plans. To this end, it is essential that responsible military commanders 
coordinate fully with the appropriate military authorities responsible 
for air defense to ensure that conflicting situations can be resolved 
while emergency plans are still under development. The provisions of 
this section do not apply to Strategic Air Command (SAC) Emergency War 
Orders (EWOs) for which special coordination has been effected between 
SAC, NORAD and FAA agencies.
    (b) Intention. To establish coordination procedures necessary to 
fulfill air defense and air traffic control requirements for the 
movement of tactical air traffic and identify specific air NAVAIDS which 
are essential to support contingency operations of major command forces 
during implementation of SCATANA.
    (c) Execution. (1) Commanders of Major Commands (or ``Responsible 
Military Commanders'') are to ensure that:
    (i) The air traffic movement sections of their Emergency War Plans 
(including dispersal, evacuation and other related contingency plans) 
and the specific air NAVAIDS essential to support

[[Page 560]]

contingency operations are fully coordinated during development with the 
appropriate military authority responsible for air defense. In the NORAD 
area of responsibility the authority is the NORAD region commander. When 
flights will transit more than one region, coordination must be effected 
with all of the region commanders involved. The NORAD region commander 
will effect necessary coordination on those tactical operations with the 
FAA through the Region Air Defense Liaison Officer (RADLO).
    (ii) Subsequent to the coordination required in the paragraph 
(c)(1)(i) of this section, extracts of the air traffic movement section 
of their plans are to be passed to the appropriate military authorities. 
The extracts are to be prepared according to the format shown in Sec. 
245.7. In the NORAD area of responsibility the extracts are to be sent 
to the Commander of the NORAD region in which the flights originate.
    (2) Responsible military authorities will:
    (i) During the coordination phase, ensure that proposed aircraft 
movements do not conflict in time, altitude, route or any other respect 
with other planned movements. Potential conflicts are to be resolved 
through negotiations with the commands involved.
    (ii) On receipt of the tactical air movement plan extracts, review 
again their impact on the overall air situation, incorporate the 
extracts into the unit SCATANA plan, as supplements, and distribute the 
extracts to appropriate military agencies, FAA regions and ARTCCs.



Sec. 245.7  Extract of Tactical Air Movement Plan.

(Unit)__________________________________________________________________
(Office symbol)_________________________________________________________
Address_________________________________________________________________


    Project officer name and phone number
Mission name:

SCATANA_________________________________________________________________
    (NORAD region of flight plan origination)

                                                        (Number assigned
                                                              by region)

                                                          (WATPL number)
(a)_____________________________________________________________________
                                                     (Call sign, or VCSL
                                              block/line of flight lead)
(b)_____________________________________________________________________
                                                        (Number and type
                                                     aircraft/NAV equip)
(c)_____________________________________________________________________
                                        (Departure base, ICAO 4 letters)
(d)_____________________________________________________________________
                                  (Level-off point/elasped time) (direct
                                                        or airway route)
________________________________________________________________________
                                               Points to penetration fix
(e)_____________________________________________________________________
                                        (Destination/total time enroute)
                                                        (ICAO 4 letters)
(f) ``E'' hour plus_____________________________________________________
                                                                   (ETD)

                                     (Interval planned between aircraft,
                                                      cells, or flights)

Altitude Reservation Void on hour after last ETD.

    (g)------------------KT.

 (TAS)

MARSA within this flight.

                                        (Military assumes responsibility
                                             for separation of aircraft)

All other call signs are:_______________________________________________



Sec. 245.8  Wartime Air Traffic Priority List (WATPL).

    (a) Situation. When SCATANA is implemented, a system of traffic 
priorities is required in order to ensure that optimum use is made of 
airspace, consistent with air defense requirements. This system will be 
the prime means of controlling the volume of air traffic. (The Security 
Control Authorization will be used as a supplement to WATPL.)
    (b) Intention. To establish a WATPL for the movement of air traffic 
when SCATANA has been implemented, and to provide policy guidance for 
the practical application of the system. Priorities shall take 
precedence in the order listed and subdivisions within priorities are 
equal.
    (c) Wartime Air Traffic Priority List--(1) Priority One. (i) 
Aircraft engaged in active continental defense missions. This includes 
interceptors, antisubmarine aircraft and airborne early warning and 
control aircraft.
    (ii) Retaliatory aircraft, including their direct support aircraft, 
executing EWO.

[[Page 561]]

    (iii) Airborne command elements which provide backup to command and 
control systems for the combat forces.
    (iv) The President of the United States and Prime Minister of Canada 
and respective cabinet members essential to national security.
    (2) Priority Two. (i) Forces being deployed for or in direct and 
immediate support of combat operations against the enemy to include the 
use of activated Civil Reserve Air Fleet (CRAF) aircraft as necessary.
    (ii) SAC aircraft in direct and immediate support of EWO not 
included in priority one.
    (iii) Search and rescue aircraft operating in support of these 
activities.
    (3) Priority Three. (i) Forces being deployed in support of combat 
operations against the enemy.
    (ii) Continental Air Reconnaissance for Damage Assessment (CARDA) 
missions for the support of immediate combat operations.
    (iii) Search and rescue aircraft not included in priority two.
    (iv) Flight inspection aircraft flights in connection with emergency 
restoration of airway and airport facilities in support of immediate 
combat operations.
    (4) Priority Four. Dispersal of:
    (i) Tactical military aircraft.
    (ii) U.S. air carrier aircraft assigned to the War Air Service 
Program (WASP).
    (iii) U.S. civil air carrier aircraft allocated to the CRAF Program.
    (iv) FAA flight inspection aircraft.
    (v) Foreign civil air carrier aircraft in the U.S. in accordance 
with specific international agreements.
    (vi) Public aircraft assigned to FAA and other Federal agencies.
    (5) Priority Five. (i) The air transport of military commanders, 
their representatives, and DoD sponsored key civilian personnel which is 
of the utmost importance to national security, or which will have an 
immediate effect upon combat operations of the Armed Forces.
    (ii) Dispersal of nontactical military aircraft for their 
protection.
    (iii) Public aircraft assigned to FAA and other Federal agencies.
    (6) Priority Six. (i) Flight operations in accordance with approved 
Federal and State emergency plans (WASP and SARDA). U.S. civil air 
carrier flights will operate under the provisions of CAB Air Transport 
Mobilization Order ATM-1, ``Route Authorizations and Operations,'' and 
the WASP. Foreign civil air carrier flights will operate in accordance 
with specific international agreements.
    (ii) Other essential CARDA missions not included in paragraph 
(c)(3)(ii) of this section.
    (iii) Flight inspection activity in connection with airway and 
airport facilities.
    (7) Priority Seven. Other military flight operations.
    (8) Priority Eight. All other flight operations not specifically 
listed above.
    (d) Policy for Application of WATPL. (1) The restrictions embodied 
in the WATPL will apply to all aircraft except those in receipt of a 
Security Control Authorization.
    (2) Priority will be solely dependent on the nature of the 
aircraft's mission. Operational test flights will take the priority of 
the mission aircraft tested.
    (3) The originator of a request for aircraft movement will be 
responsible for determining and verifying the appropriate priority in 
accordance with the list described above.
    (4) The individual filing the flight plan will be responsible for 
including the priority number as determined by the originator of the 
request.
    (5) During general war conditions, situations may occur which cannot 
be related to the WATPL. Aircraft emergencies and inbound international 
flights which have reached the point of no return, including foreign air 
carrier flights enroute to safe haven airports in accordance with 
specific international agreements are examples of such situations. These 
incidents must be treated individually through coordination between ATC 
and appropriate military agencies in consideration of the urgency of the 
inflight situation and existing tactical military conditions.
    (6) During periods other than general war, aircraft movements are 
handled as follows:
    (i) Involvement in limited war or execution of contingency plans, to 
include JCS directed actions, immediately

[[Page 562]]

makes successful completion of such action a primary national objective. 
Therefore, aircraft movements in support of these actions will be 
afforded expeditious handling by the ATC system commensurate with the 
degree or urgency stated by the JCS to the FAA. When directing the 
execution of a contingency/limited war plan, or other JCS directed 
operation which is in pursuit of primary national objectives, the JCS 
will so advise the FAA (or appropriate Canadian authority if Canadian 
airspace is involved), requesting that aircraft operating in accordance 
with such plans be given preferential handling over all air traffic 
except active air defense missions and launch of the strategic alert 
force and supporting aircraft. Should contingency, limited warfare, or 
other JCS directed plans be executed concurrently by more than one 
operational commander, the JCS will state to the FAA (or appropriate 
Canadian authority when Canadian airspace is involved), and the military 
commanders concerned, the relative urgency of each operation and will 
resolve conflicts that may arise therefrom.
    (ii) Assignment of reserved airspace to accommodate military air 
operations which, because of their objectives, cannot be conducted in 
accordance with routine ATC procedures will be based upon an order of 
precedence for the purpose of resolving mission conflicts in planning 
altitude reservations. This order of precedence is published in 
appropriate Joint Service Regulations and FAA documents.
    (7) Priorities for air traffic clearances required under the SCATANA 
plan are not to be confused with civil priorities assigned to civil air 
carrier aircraft under the WASP priorities system, or to general 
aviation civil aircraft under the SARDA plan. WASP and SARDA priorities 
are designed to provide for controlled use of civil aircraft capability 
and capacity, and they have secondary significance when the WATPL for 
the movement of aircraft is in effect.



Sec. 245.9  Procedures for movement of air traffic.

    (a) Situation. The primary instrument used by NORAD region 
commanders to control the volume of air traffic operating within their 
areas of responsibility is the WATPL for Movement of Air Traffic (Sec. 
245.8).
    (b) Intention. To establish procedures necessary for the expeditious 
movement of tactical air traffic during periods when SCATANA is in 
effect.
    (c) Execution. (1) Tactical air traffic assigned a WATPL number of 1 
or 2 will not be delayed, diverted, rerouted, or landed by NORAD region 
commanders. However, NORAD region commanders may recommend that this 
traffic be rerouted to avoid battle or battle threatened areas.
    (2) Air traffic assigned a WATPL number other than 1 or 2 may be 
delayed, diverted, rerouted, or landed by the NORAD region commander to 
prevent degradation of the air defense system.
    (3) Aircraft being ``recovered'' will be expedited to home or 
alternate base, and ``search and rescue'' aircraft expedited on their 
missions; but such aircraft may be diverted to avoid battle areas or 
take off may be delayed to prevent saturation of airspace.
    (4) Tactical air traffic will file IFR flight plans and comply with 
IFR procedures regardless of weather. The appropriate WATPL number will 
be entered in the Remarks section in the Aircraft Clearance Form DD 175. 
The WATPL number will be posted on ARTCC flight strips passed from one 
ARTCC to the next, and to the appropriate air defense control 
facilities.
    (5) For mass military operations a single clearance form will be 
filed and ALTRAV procedures will be applied.
    (6) Compliance with approved flight plan and position report 
requirements is of utmost importance for identification. Aircraft 
aborting or deviating from an approved flight plan will air-file a 
revised flight plan as soon as the necessity for such deviation is 
evident. Unauthorized deviations may preclude identification and result 
in engagement by defensive weapons.
    (d) Special operations. (1) The volume of air traffic in areas 
critical to air defense can be controlled by means of the WATPL. In 
areas that are not critical to air defense or in areas of poor or no 
radar coverage, the appropriate military authority may wish to authorize

[[Page 563]]

additional specific flights which may not qualify for a high enough 
priority under the WATPL. When ESCAT or SCATANA have been implemented 
the appropriate military authority may authorize flights by granting a 
Security Control Authorization to the ARTCC or agency requesting the 
clearance.
    (2) The following flights may require the granting of a Security 
Control Authorization prior to take off:
    (i) Organized civil defense missions.
    (ii) Disaster relief flights.
    (iii) Agricultural and forest fire flights.
    (iv) Border patrol flights.
    (v) SARDA flights prior to WATPL Six.



Sec. 245.10  SCATANA testing.

    (a) Situation. To insure that SCATANA actions can be taken 
expeditiously, SCATANA tests will be conducted periodically.
    (b) Intention. (1) SCATANA tests will be conducted in connection 
with Headquarters NORAD or NORAD region large-scale simulated exercises. 
Additional tests may be conducted by individual NORAD regions when test 
objectives are local in nature.
    (2) All Federal facilities responsible for SCATANA actions will 
participate in SCATANA tests, except where such participation will 
involve the safety of aircraft. Non-federal civil aeronautical 
facilities may be requested to participate.
    (c) Execution. (1) During SCATANA tests, all actions will be 
simulated.
    (i) Aircraft will not be grounded or diverted.
    (ii) Air navigation aids will not be shut down.
    (iii) Test messages will not be transmitted over air/ground/air 
radio frequencies.
    (iv) Radio communications will not be interrupted.
    (2) For NORAD Exercises.
    (i) If ESCAT is applied by CINC NORAD, this fact will be passed to 
the Region SCATANA Officer in plain language. Region SCATANA officers 
may call or simulate calling the appropriate ARTCC using the following 
statement:

    This is a NORAD exercise. Apply ESCAT. ARTCC acknowledge and take no 
further action.

    (ii) If ESCAT is applied or SCATANA is implemented by the Region 
Commander, the Region SCATANA Officer may simulate the call or may make 
an actual call using the format shown in paragraph (c)(2)(i) of this 
section, and inserting ESCAT or SCATANA as appropriate.
    (3) SCATANA Test. This is a test conducted by ARTCC's in which 
SCATANA participants conduct simulated notification actions required by 
the plan. Timing of the test will be at the discretion of the ARTCC. A 
narrative summary of each test is to be prepared by the ARTCC MLO and 
copies sent to appropriate NORAD Region SCATANA Officer, FAA Region MLO, 
FAA NORAD RDLO and FAA NORAD Hq LO. FAA NORAD Hq LO will be responsible 
for reviewing the SCATANA tests reports and recommending changes to the 
testing procedures to Hq NORAD as deemed appropriate. The SCATANA tests 
will be conducted at least quarterly.
    (4) SCATANA Diversion Simulation. This is a test designed to 
exercise ARTCC personnel in making decisions on aircraft diversion which 
would be required under actual implementation of the plan. The timing of 
the simulation will be pre-coordinated between the ARTCCs and the NORAD 
Region SCATANA Officer. The guideline timeframe for the area recovery of 
all non-essential air traffic in actual operations has been fixed at an 
optimum of twenty minutes; diversion simulation exercises should operate 
on a similar timeframe. Tests will be conducted at least semi-annually.
    (i) The NORAD region will provide charts to the ARTCC for the 
recording of simulated aircraft diversions. The completed charts will be 
passed to the NORAD Region SCATANA Officer for analysis. The NORAD 
Region SCATANA Officer will brief region staffs on the results of the 
exercise and FAA representation will be invited.
    (ii) The charts will record the position of all live aircraft on IFR 
clearances in the ARTCC's area at the time ESCAT was simulated, the 
position of

[[Page 564]]

all aircraft when SCATANA was simulated, and will show the airports to 
which simulated diversions were made.



Sec. 245.11  Authentication.

    Authentication is not required between NORAD Region Control Centers 
and ARTCCs for the implementation of SCATANA.



PART 246_STARS AND STRIPES (S&S) NEWSPAPER AND BUSINESS OPERATIONS--Table 
of Contents




Sec.
246.1 Purpose.
246.2 Applicability.
246.3 Definitions.
246.4 Policy.
246.5 Responsibilities.
246.6 Procedures.
246.7 Information requirements.

Appendix A to Part 246--Mission
Appendix B to Part 246--Business and Financial Operations
Appendix C to Part 246--Personnel Policies and Procedures
Appendix D to Part 246--Editorial Operations
Appendix E to Part 246--Stars and Stripes (S&S) Board of Directors

    Authority: 10 U.S.C. 136.

    Source: 59 FR 19137, Apr. 22, 1994, unless otherwise noted.



Sec. 246.1  Purpose.

    This part:
    (a) Establishes policy, assigns responsibilities, and prescribes 
procedures for the S&S organizations owned by designated Unified 
Commands consistent with 32 CFR part 372.
    (b) Supersedes policies and procedures in 32 CFR part 247 about the 
S&S newspapers.
    (c) Authorizes the establishment, management, operation, and 
oversight of the Stars and Stripes, including the resale of commercial 
publications necessary to support the overall S&S mission, production, 
distribution authority, and business operations as mission-essential 
activities of the Department of Defense and the designated Unified 
Commands.
    (d) Designates the Secretary of the Army as the DoD Executive Agent 
for providing administrative and logistical support to the American 
Forces Information Service (AFIS), designated Unified Commands, and the 
S&S.
    (e) Authorizes the Commander in Chief, U.S. European Command, and 
the Commander in Chief (CINC), U.S. Pacific Command, to establish and 
maintain a S&S board of directors to address S&S business operations in 
their Unified Commands.



Sec. 246.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments (including their National Guard and Reserve 
components), the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Unified and Specified Commands, the Inspector General of the 
Department of Defense, the Defense Agencies, and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
Components''). The term ``the Military Services,'' as used herein, 
refers to the Army, the Navy, the Air Force, and the Marine Corps.



Sec. 246.3  Definitions.

    (a) Adverse Conditions. Conditions that may adversely affect the 
survival of the newspapers such as troop drawdown, increase in troop 
population, currency fluctuations, inflation, armed conflict, national 
contingency deployment, and others.
    (b) S&S Commander/Publisher. The senior position in each S&S 
responsible for simultaneously performing dual functions. This military 
officer commands the S&S to which assigned, while also serving as the 
publisher of the Stars and Stripes produced by that organization.
    (c) S&S Management Action Group (MAG) and S&S Steering Committee. 
These are ad hoc joint committees between the Office of the Assistant 
Secretary of Defense (Public Affairs) [OASD (PA)] and the Office of the 
Assistant Secretary of Defense (Force Management and Personnel) [OASD 
(FM&P)] that address S&S personnel and business policies. The S&S MAG is 
chaired by the senior OASD (PA) AFIS member and includes members from 
the OASD (FM&P) and other DoD offices with the authority and expertise 
to address various S&S problems. The Director of the AFIS, and the 
Deputy

[[Page 565]]

Assistant Secretary, OASD (FM&P), serves as co-chairman of the S&S 
Steering Committee that addresses DoD-level S&S issues. Neither the DoD 
S&S Steering Committee, nor the S&S MAG, involve themselves in Stars and 
Stripes editorial policies.
    (d) S&S Ombudsman. A highly qualified journalist hired from outside 
the Department of Defense for a term of 3 years who independently 
advises the Unified Command CINCs, the S&S commander/publisher, the 
Stars and Stripes editor, the Director of the AFIS, and the Congress on 
matters of readership interest in the Stars and Stripes.
    (e) Stars and Stripes. The title of one, or both, depending on the 
context of usage, of the newspapers produced by the S&S.
    (f) Stars and Stripes Editor. The senior civilian position on the 
newspaper editorial staff of the S&S to which he or she is assigned. All 
mention of ``the editor'' in this part refers exclusively to this 
position, unless otherwise specified.
    (g) Stars and Stripes (S&S). The organizations that perform the 
administrative, editorial, and business operations, which include 
newspapers, bookstores, job-printing plants, etc. necessary to do their 
mission.



Sec. 246.4  Policy.

    It is DoD policy that:
    (a) The U.S. European Command and the U.S. Pacific Command are 
authorized to publish the Stars and Stripes and provide support to the 
S&S. The Unified Command component commanders and their public affairs 
staffs shall provide the Stars and Stripes editorial staffs the same 
help provided to commercial newspapers, in compliance with the 
principles governing the release of information to media in 32 CFR part 
375.
    (b) Editorial policies and practices of the Stars and Stripes shall 
be in accordance with journalistic standards governing U.S. daily 
commercial newspapers of the highest quality, with emphasis on matters 
of interest to the Stars and Stripes readership. Except as provided in 
paragraph (e) of this section, the DoD policy for the Stars and Stripes 
is that there shall be a free flow of news and information to its 
readership without news management or censorship. The calculated 
withholding of unfavorable news is prohibited.
    (c) The S&S are basically self-sustaining operations. Each S&S shall 
be administered in accordance with DoD Directive 1015.1\1\ as a joint-
Service nonappropriated fund (NAF) instrumentality (NAFI) in its Unified 
Command, except where different procedures are specified in this part. 
Funding shall be provided through newspaper sales, resale of commercial 
publications, authorized advertising, job printing, and appropriated 
fund (APF) support as authorized by this part, DoD Directive 1015.6 \2\ 
and DoD Instruction 1330.18 \3\. The S&S shall conduct bookstore 
operations similar to business operations of commercial bookstores in 
the United States. The Stars and Stripes and the S&S bookstores provide 
important news and information to U.S. personnel and their families 
stationed overseas while generating NAF revenues.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 246.4(c).
    \3\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------

    (d) The Stars and Stripes personnel procedures shall differ from 
commercial newspapers only because the S&S are U.S. Government 
organizations that are required to operate in accordance with the 
following:
    (1) 32 CFR part 40, other Federal laws and DoD Directives that 
affect all DoD employees, and the Manual for Courts Martial (MCM), 1984 
\4\, for S&S military personnel on active duty.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------

    (2) National security constraints prescribed by E.O. 12356 (47 FR 
14874 and 15557, 3 CFR, 1982 Comp., p. 166).
    (3) Overseas status of forces agreements (SOFAs), where applicable.
    (e)(1) The only circumstances under which news or information that 
is not in the public domain may be directed to be withheld from 
publication in the Stars and Stripes by a Unified Command CINC are when 
such publication:
    (i) Involves disclosure of classified national security information.
    (ii) Would adversely affect national security.

[[Page 566]]

    (iii) Clearly endangers the lives of U.S. personnel.
    (2) Those circumstances in paragraphs (e)(1)(i) through (e)(1)(iii) 
may not be construed to permit the calculated withholding of news 
unfavorable to the Department of Defense, the Military Services, or the 
U.S. Government. Only the Unified Command CINC may authorize withholding 
of news or information from the Stars and Stripes. When the CINC directs 
withholding of publication, the Unified Command shall immediately inform 
the ASD(PA) by telephone and then forward an immediate precedence, 
appropriately classified, message to the following: SECDEF Washington 
DC//OATSD-PA, with information copies to the Director, AFIS, and the 
Special Assistant for Public Affairs to the Chairman of the Joint Chiefs 
of Staff. The CINC may include the appropriate ``AMEMBASSY'' as an 
information addressee.
    (f) Sensitivities of host-nations shall not be a reason to withhold 
any story from publication in the Stars and Stripes. The Unified Command 
theater host-nation sensitivity lists prepared for the Armed Forces 
Radio and Television Service (AFRTS) shall not be used to restrict the 
content of the Stars and Stripes. If representatives of other 
governments show an interest in, or concern about, the content of the 
Stars and Stripes, they shall be informed that:
    (1) The Stars and Stripes does not represent the official position 
of the U.S. Government, including the Department of Defense or the 
Unified Command.
    (2) The Stars and Stripes is an unofficial, abstracted collection of 
commercial news and opinion available to commercial newspapers in the 
United States, along with Stars and Stripes editorial staff-generated 
DoD, command, and local news and information. The Stars and Stripes 
provides this information to the members of the Department of Defense 
and their family members serving overseas, as do commercial daily 
newspapers that are published and sold throughout the United States in 
keeping with the principles of the First Amendment to the U.S. 
Constitution.
    (g) The Department of the Army shall be the DoD Executive Agency to 
provide APF and NAF support to the S&S. APFs shall be provided, when 
required by adverse conditions or special circumstances as defined in 
Sec. 246.3, by the Military Services, as agreed on through a memorandum 
of agreement (MOA) detailing the shared responsibilities, and approved 
by the OSD and the Unified Commands.



Sec. 246.5  Responsibilities.

    (a) The Assistant to the Secretary of Defense (Public Affairs), 
under 32 CFR part 375, as the principal staff assistant to the Secretary 
of Defense for internal information policy and programs, including S&S 
matters, shall:
    (1) Provide policy and broad operational guidance to the Director of 
the AFIS.
    (2) Monitor and evaluate the overall effectiveness of the policies 
in Sec. 246.4, and procedures in Sec. 246.6.
    (b) The Director, American Forces Information Service, under 32 CFR 
part 372 shall:
    (1) Develop, issue, and oversee the implementation of policies and 
procedures for the Unified Commands and the Military Departments for the 
operation of the S&S.
    (2) Provide business and policy counsel on the mission performance 
and financial operations of the S&S.
    (3) Serve as the DoD point of contact with the Congressional Joint 
Committee on Printing (JCP) for S&S matters.
    (4) In coordination with the Chairman of the Joint Chiefs of Staff 
and the ATSD(PA), provide broad and overall planning guidelines to the 
Unified Commands for S&S wartime operations that involve more than one 
area of responsibility.
    (5) Chair, as required, at the Deputy Assistant to the Secretary of 
Defense level, or above, the steering committee providing guidance to 
the S&S MAG.
    (6) Select and employ the S&S Ombudsman.
    (c) The Secretaries of the Military Departments shall:
    (1) Nominate the most highly-qualfied military personnel for 
positions in the S&S in acordance with appendix C to this part.

[[Page 567]]

    (2) Enter into appropriate MOAs, as provided by the Unified 
Commanders and, as required by the Office of the Secretary of Defense 
(OSD), to provide APF and/or NAF support when required by adverse 
conditions as defined in Sec. 246.3(a).
    (d) The Secretary of the Army shall:
    (1) Provide administrative and logistic support, as the DoD 
Executive Agent, to the S&S organizations.
    (2) Support NAF and APF accounting and reporting procuedures 
required by DoD Instruction 7000.12 \5\, in coordination with the 
Unified Commands and the Director of the AFIS.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------

    (3) Designate the successor-in-interest to the S&S, as agreed upon 
by the applicable Unified Command and the Director of the AFIS.
    (e) The Commander in Chief, U.S. European Command, and the Commander 
in Chief, U.S. Pacific Command, shall:
    (1) Authorize a Stars and Stripes newspaper, provide operational 
direction to the S&S commander publisher, and support the S&S throughout 
the Unified Command area of responsibility, consistent with each 
organization's status as a category B NAFI.
    (2) Provide Unified Command regulations and guidance, as needed, to 
carry out this part.
    (3) Establish procedures to resolve situations wherein a U.S. 
Ambassador (or, if so designated, the chief of mission) believes a 
specific issue in his or her nation of responsibility, not already in 
the public domain through other news sources, would violate national 
security or endanger the safety of American citizens, or other persons 
under their jurisdiction, if it were to be published in the Stars and 
Stripes.
    (4) Select the S&S commander/publisher and other military officers 
in S&S positions.
    (5) Aid the S&S commander/publisher to educate the Stars and Stripes 
editorial staff about the missions of their Unified Command and Military 
Service component commands.
    (6) Approve the selection of the Stars and Stripes editor.
    (7) Establish and maintain a S&S board of directors to address S&S 
business operations. (See appendix E to this part)
    (8) Establish and maintain Stars and Stripes readership forums, 
which may take many forms, to address Stars and Stripes matters of 
interest and S&S bookstore operations. Those forums are to provide 
community feedback to the S&S. This will enable the S&S commander/
publisher and the Stars and Stripes editor to better understand and, 
thereby, better serve the interests and needs of the readers and 
bookstore customers.
    (9) At the discretion of the Unified Command CINC, provide for 
meetings between the S&S commander/publisher and the Stars and Stripes 
editor, the Unified Command public affairs office, and the Unified 
Command component commands, represented by their directors of public 
affairs, to discuss the performance of the Stars and Stripes and the 
performance of related public affairs operations. The Unified Commands, 
their component commands, and the S&S may invite any attendees they 
choose. Representatives from the AFIS may attend. Those meetings may not 
serve as editorial advisory boards. The Unified Command and component 
commands represent the principal source, and a prominent subject, of 
Stars and Stripes staff-generated news coverage. Consequently, any 
involvement or appearance of involvement by component command staffs in 
the Stars and Stripes editorial policy creates an unacceptable conflict 
of interest damaging to the editorial integrity and credibility of the 
Stars and Stripes.
    (10) Ensure that the S&S Commander/Publisher:
    (i) Assumes the duties and responsibilities of command, leadership, 
management, and training for the S&S.
    (ii) Executes DoD and Unified Command policy.
    (iii) Is responsible to the Unified Command CINC for S&S operations 
to include the newspaper publication and timely circulation, the 
operation of the S&S resale and job printing activities, and associated 
distribution systems in the relevant Unified Command area of 
responsibility.
    (iv) Provides planning and execution of initiatives to ensure 
support of U.S.

[[Page 568]]

Armed Forces during contingency operations and armed conflict. The S&S 
commander/publisher shall identify wartime and contingency S&S personnel 
asset requirements to the Unified Command CINC to fulfill the Unified 
Command force responsibilities during armed conflict.
    (v) Selects the Stars and Stripes editor.
    (vi) Approves, in coordination with the Stars and Stripes editor, 
military personnel selectees for the Stars and Stripes editorial staff. 
(See appendix C to this part)
    (vii) Provides a current status briefing and 2-year financial 
forecast to the Director of the AFIS at the annual AFIS S&S meeting. 
Provides support to the S&S board of directors as required in appendix E 
to this part.
    (viii) Conducts frequent independent readership surveys, in 
accordance with DoD Instruction 1100.13 \6\, and readership focus groups 
to gather information.
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------

    (f) The Other Unified Commanders in Chief shall ensure that their 
deployment exercise, contingency, and war-time planning documents 
reflect the S&S transportation, funding or reimbursement, and in-theater 
distribution requirements, as applicable. Information copies of such 
planning documents or annexes shall be furnished to the following:
    (1) U.S. European Command (ATTN: Director, Public Affairs).
    (2) U.S. Pacific Command (ATTN: Director, Public Affairs).
    (3) The AFIS (ATTN: Assistant Director for Plans and Policy).



Sec. 246.6  Procedures.

    (a) General. (1) Authority to establish or disestablish S&S 
operations is from the Secretary of Defense through the ATSD(PA) and the 
Director of the AFIS. The Unified Commands shall forward such requests 
to the Director of the AFIS, as required.
    (2) Classified information shall be protected in accordance with 32 
CFR parts 159 and 159a.
    (3) The Stars and Stripes and the S&S business operations shall 
conform to applicable regulations and laws involving libel, copyright, 
U.S. Government printing and postal regulations, and DoD personnel 
policies and procedures.
    (4) With the concurrence of the Unified Command, the S&S is 
authorized direct communication with the Military Services on S&S 
personnel matters and with the Department of the Army on S&S financial 
matters. The S&S shall keep the Unified Command and the AFIS informed of 
all actions.
    (b) Management Review and Evaluation. (1) The Director of the AFIS 
provides business counsel, assistance, and policy oversight for the S&S. 
The Director of the AFIS shall meet annually with the Unified Command 
representatives, to include the S&S commander/publisher, and senior DoD 
officials who have S&S responsibilities, such as the S&S MAG.
    (2) The Director of the AFIS shall be assisted by a S&S MAG composed 
of senior representatives from the AFIS, the OASD(FM&P), and the other 
DoD offices with the authority and expertise to aid in solving S&S 
problems. As needed, the Director of the AFIS may organize a DoD 
steering committee to oversee and aid the S&S MAG to address specific 
concerns identified by the Director of the AFIS and the Unified Command 
CINCs.
    (3) In accordance with DoD Instruction 7600.6 \7\, and Army 
implementation thereof, the S&S shall be audited on an annual basis, 
either by the Army Audit Agency (AAA) or by an AAA-approved audit 
contractor. NAF funds of the S&S shall be used for such contracts. The 
audits will be performance audits and may be financial in nature as 
prescribed by the Comptroller General of the United States Government 
Auditing Standards. Each annual audit will determine whether prior audit 
recommendations have been implemented and the reasons any have not been 
implemented. When the Inspector General, DoD, elects to perform an audit 
of the S&S organization, such audit may substitute for the required 
annual audit. The S&S organizations shall coordinate their audit 
requirements with each other and the Army Community

[[Page 569]]

and Family Support Center to the maximum extent practicable to avoid 
duplication of costs and to increase the efficiency and effectiveness of 
these audits. Information copies of the audit contractor reports shall 
be forwarded by the S&S to the Unified Commands, AFIS and AAA. The S&S 
shall provide a response to the audit to the Unified Command CINC within 
60 days of receiving the completed report. The S&S response to the audit 
must indicate a concurrence or nonconcurrence for each finding and 
recommendation. For each concurrence the corrective actions taken or 
planned should be described and completion dates for actions already 
taken, as well as the estimated dates for completion of planned actions, 
should be provided. For each nonconcurrence, specific reasons must be 
stated. If appropriate, alternative methods for accomplishing desired 
improvements may be proposed. If nonconcurrences in the findings and 
recommendations cannot be resolved between the S&S management and the 
auditors or AAA endorses the contractors' findings and recommendations, 
then the resolution procedures established by DoD Directive 7650.3 \8\, 
and Army Regulations should be followed. The Unified Command shall 
forward the response to the Director of the AFIS and the AAA.
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 246.4(c).
    \8\ See footnote 1 to Sec. 246.4(c).
---------------------------------------------------------------------------



Sec. 246.7  Information requirements.

    The reporting requirements in Sec. 246.6, and appendix B to this 
part shall be submitted in accordance with DoD Instruction 7000.12, and 
7600.6, unless specifically excepted by this part.

                     Appendix A to Part 246--Mission

    A. General. The Stars and Strips (S&S) organizations shall 
contribute to the overall U.S. joint-defense mission overseas by 
providing news and information for the Armed Forces internal audiences 
serving in a Unified Command area of responsibility, or deployed in 
support of designated joint-Service exercises, contingency operations, 
or situations of armed conflict. That shall be done through the 
operation of a daily newspaper and resale activities of commercial 
publications (primarily through the S&S bookstores).
    B. Newspapers. The Stars and Stripes coverage of news and 
information makes possible the continued exercise of the 
responsibilities of citizenship by DoD personnel and their families 
overseas. The Stars and Stripes are to be published overseas during 
peacetime, contingency operations, and armed conflicts. They shall 
provide the same range of international, national, and regional news and 
opinion from commercial sources, as is provided by newspapers in the 
United States. Additionally, to better serve their readers, the Stars 
and Stripes shall pay special attention to news of local, host-country 
conditions relevant to their audiences. They shall provide, through 
their reporters and bureaus, news of local military communities within 
the theater and news of the U.S. Government, the Department of Defense, 
the Military Services, and theater operations not usually available to 
readers from outside commercial sources. The Stars and Stripes are to 
serve the interests of their overseas DoD readership as do prominent 
commercial daily newspapers throughout the United States.
    C. S&S Bookstores and Retail Operations. The S&S shall serve 
readers' needs for contemporary news and information by providing a 
broad selection of resale commercial publications of interest to their 
customers at the most reasonable prices, either directly in the S&S 
bookstores or through other authorized sales outlets at their discretion 
throughout the Unified Command designated geographic area. The S&S shall 
have the same authorities and rights for resale commercial publications 
that the military exchange services have for other nonsubsistence goods 
and services.
    D. S&S Job Shop Printing. The S&S are authorized to operate job shop 
printing, to include book publishing and/or printing, within the Unified 
Commands for U.S. military community newspapers, military organizations, 
nonappropriated fund (NAF) instrumentalities (NAFI), Morale, Welfare, 
and Recreation (MWR) activities, private organizations of interest and 
concern to the Department of Defense, as designated by 32 CFR part 212, 
DoD employees and their immediate families, and others designated by the 
Unified Command.
    E. War-Time Mission and Contingency Operations. The S&S shall 
provide the Stars and Stripes on a daily basis for transportation to, 
and distribution in, the designated area of operations, as requested and 
funded by the responsible Unified Command Commander-in-Chief (CINC), and 
supported by the respective Unified Command owning the S&S organization. 
The Unified Commands shall plan for required airlift on a timely basis 
and intratheater distribution of daily Stars and Stripes newspapers as 
part of their operational planning documents. Intratheater distribution 
and required airlift of the Stars

[[Page 570]]

and Stripes shall be the responsibility of the supported Unified Command 
CINC and respective component commands, who shall reimburse the S&S for 
nonresale issues on a per-issue basis. When deployed to an area of 
operations, the Stars and Stripes reporters shall operate in the same 
manner as commercial media representatives. The deployed Stars and 
Stripes reporters shall be eligible for participation in DoD and 
command-sponsored regional and local media pools.

        Appendix B to Part 246--Business and Financial Operations

    A. General Financial Operations. 1. For financial management 
purposes, the Unified Commands shall administer the Stars and Stripes 
(S&S), with policy oversight exercised by the Director of the American 
Forces Information Service (AFIS), as nonappropriated fund 
instrumentalities (NAFIs) in accordance with Sec. 246.4(c), except 
where procedures differ as defined in this part. The S&S shall report as 
prescribed in DoD Instruction 7000.12,\1\ providing information copies 
to the Unified Commands and the Director of the AFIS.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    a. The S&S shall be authorized nonappropriated fund (NAF) and 
appropriated fund (APF) support as category B NAFIs as provided under 
DoD Instruction 1015.6.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to A.1. of this appendix.
---------------------------------------------------------------------------

    b. The S&S shall be funded to the maximum extent possible through 
the sale and distribution of the newspaper, news magazines, books, 
periodicals, and similar products; job printing; authorized advertising 
revenues; and other authorized sources of revenue, as approved by the 
Department of Defense and the Congress.
    c. APF support shall be kept to a minimum, consistent with the S&S 
mission.
    2. The Secretary of the Army shall be the DoD Executive Agent for 
APF and NAF support to the S&S. If adverse conditions occur, the other 
Military Services shall provide proportionate funding support through a 
memorandum of agreement (MOA) containing funding procedures coordinated 
with the affected Unified Commands and the AFIS. Copies of the agreement 
shall be provided to all concerned parties.
    3. The Stars and Stripes and other S&S commercial resale 
publications may be made available within the Unified Command to other 
U.S. Government Agency members, and U.S. Government contractors, as 
approved by the Unified Command.
    4. The S&S system of accounting and internal control shall conform 
with the requirements of DoD Instruction 7000.12, Army regulations on 
Morale, Welfare and Recreation (MWR) activities and NAFIs, and NAF 
accounting policies and procedures, except as authorized by the S&S 
Comptroller's Manual to meet business and consolidation requirements. 
The S&S shall ensure that quarterly reports are furnished to the Unified 
Commands, the S&S Board of Directors, and the Director of the AFIS.
    B. Appropriated Funds. In addition to DoD Directive 1015.6, the S&S 
shall be authorized APF support:
    1. As provided by the U.S. Army for direct funding support when 
adverse conditions make such funding necessary to ensure the survival of 
the newspaper without impairment of mission capability. The Secretary of 
the Army shall provide such funding when requested by the affected 
Unified Command Commander-in-Chief (CINC), through the Director of the 
AFIS.
    2. For regional air transportation of the newspaper, overseas 
``transportation of things'' as authorized to joint-Service NAFIs; and 
electronic, optical, or satellite transmission of the newspaper when 
long distances require these modes to ensure timely and economical 
delivery.
    3. As required, to transport Stars and Stripes to officially 
designated ``remote and isolated'' locations. The Unified Commands may 
authorize DoD official postage to remote and isolated locations, if that 
action is required to ensure timely delivery. Each S&S shall annually 
review its mailing support to minimize APF expenditures. The U.S. postal 
regulations apply to the S&S.
    a. The S&S shall use in-house or other non-postal means of 
transportation to distribute the newspaper to areas that are not 
designated as remote and isolated.
    b. The S&S are authorized to use official managerial and 
administrative mail related exclusively to the business of the U.S. 
Government in accordance with DoD 4525.8-M,\3\ Chapter 3, Subsection 
O.8. Such official mail is also authorized to support archive 
responsibilities in the United States, as designated by the AFIS. 
Official mail may forward the Stars and Stripes through the Department 
of Defense to the Congress. Official mail is not authorized to provide 
the Stars and Stripes to general readership or to support in-theater 
distribution of S&S resale commercial publications.
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    \3\ See footnote 1 to A.1. of this appendix.
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    4. For transportation of military personnel incident to mission-
essential travel, required military training, participation in 
contingency operations, in military field exercises, such as 
``REFORGER'' or ``TEAM SPIRIT,'' or to areas of armed conflict.
    5. In times of armed conflict or national contingency deployment, as 
directed by the Chairman of the Joint Chiefs of Staff for production and 
free distribution of the Stars

[[Page 571]]

and Stripes to forces as designated. The other Military Services shall 
reimburse the Department of the Army for services as authorized in the 
MOA. The Unified Commands shall endeavor to provide the Stars and 
Stripes and other S&S services for DoD personnel engaged in military 
operations, contingency operations, and exercises in the most 
expeditious manner possible as requested by the participating commands. 
The requesting Unified Command shall be responsible for distribution of 
the Stars and Stripes within its theater of operations. These services 
shall be provided on a reimbursable basis to the S&S.
    6. In other agreements as made with the Unified Commands, the 
Department of Defense, and the U.S. Army as the DoD Executive Agency.
    C. Nonapproriated Funds. 1. So that the Department of the Army may 
perform its duties as the DoD Executive Agency, the S&S NAFS shall be 
invested in the Army's Banking and Investment Program and insured with 
the Army's Risk Management Insurance Program in accordance with DoD 
instruction 7000.12 and the implementing Army regulations.
    2. Excess NAFs belonging to the S&S may be declared excess by the 
Unified Command CINC, upon the recommendation of the S&S board of 
directors, under the guidelines in section C.3. of this appendix. 
Disposition of excess NAFs shall be as directed by the Unified Command 
CINC. The S&S NAFs declared in excess in one theater may be allocated or 
loaned to the other Unified Command for S&S-related activities.
    3. The S&S NAFs may be declared in excess only if the following 
conditions are met:
    a. The S&S working capital is at a level to continue prudent 
operations.
    b. The local national S&S employee retirement and severance accounts 
are fully funded. The other S&S employment agreements required by 
applicable NAF regulations must also be fully funded.
    c. Sufficient capital is available from an investment and/or 
contingency fund to complete all planned and projected capital 
expenditure projects, and to fulfill the other legitimate S&S business 
obligations.
    d. Additional sinking funds are available to sustain the S&S through 
foreseeable periods of financial crisis created by adverse conditions. 
The sinking fund level shall be determined by the S&S board of directors 
and recommended to the Unified Command CINC for approval.
    e. The retail price of the Stars and Stripes is at, or below, the 
most prevalent charge for similar U.S. newspapers. That shall be 
determined by the S&S board of directors and recommended to the Unified 
Command CINC for approval. The Director of the AFIS will be informed of 
any decision to raise the retail sales price of Stars and Stripes and 
will provide the Unified Command CINC an assessment of average 
commercial newspaper sales prices throughout the United States. The 
availability of the Stars and Stripes at reasonable cost to overseas 
personnel, commensurate with the retail sales price of comparable 
commercial newspapers throughout the United States, is a major quality-
of-life consideration. A reasonable retail sales price is critical to 
ensure the greatest access for all overseas personnel and their family 
members to current print news and information so that they may remain 
informed U.S. citizens.
    f. The S&S books, periodicals, magazines, and similar products are 
to be sold at no more than cover price and should be discounted to an 
appropriate level that still sustains full S&S operations, as determined 
by the S&S board of directors and recommended to the Unified Command 
CINC for approval.
    4. Under adverse conditions, the S&S commander/publisher may apply 
for NAF support through the Unified Commands to the Director of the 
AFIS. Following approval by the Unified Command, the Director of the 
AFIS shall forward the request to the Secretary of the Army for 
appropriate action. Such NAF requests must first be recommended by the 
S&S board of directors and approved by the Unified Command CINC. In 
these cases, the S&S NAFs in either Unified Command may be considered as 
the first source before forwarding a request to the Department of the 
Army. The Unified Commands may lend NAFs from one S&S to the other 
through an MOA.
    D. Bookstores and Related Resale Activities. 1. The S&S shall 
endeavor to provide the same selection of resale commercial publications 
that would be available in quality bookstores in the United States 
through its bookstores, or, at the discretion of the S&S management, 
other authorized sales outlets. The S&S has the same authorities and 
rights for resale and distribution of commercial publications that the 
military exchange services have on military installations for other 
nonsubsistence goods and services. The assortment of commercial books, 
periodicals, magazines, and similar products shall approximate 
publications commercially available in United States bookstore chains of 
similar size. Decisions on which publications to include shall be made 
by the S&S on the basis of marketability and service, not content. As an 
exception to the Army NAF procurement regulations, contracting authority 
limitations applicable to U.S. Army and joint-Service NAFIs do not apply 
to the S&S procurement of resale commercial publications. Limitations 
will be as recommended by the S&S board of directors and approved by the 
Unified Command.
    2. The Unified Command CINC shall adjudicate publications resale 
issues within the

[[Page 572]]

theater that cannot be resolved by the S&S at the operating level.
    3. Both S&S shall consolidate their wholesale purchases of 
commercial publications to the maximum extent, consistent with Unified 
Command distribution criteria, actual economies of scale, and cost-
efficiencies. Consolidation initiatives shall be worked in concert with 
the Unified Commands, the AFIS, and the S&S board of directors. As 
recommended by the S&S board of directors and approved by the Unified 
Command CINC, the S&S bookstores shall offer discounts similar to 
commercial United States bookstore franchises. The offering of discounts 
should not endanger the financial viability of the S&S.
    4. The S&S bookstores shall be audited by the S&S management at 
least annually. Where bookstores are operating at a consistent financial 
loss, the S&S may consider servicing readers through arrangements with 
exchanges, other military outlets, or consider consolidation at central 
points.
    a. Bookstore inventory levels shall be verified internally on a 
semiannual basis. Inventory levels shall be held to cost-effective 
levels that still consider the servicing needs of overseas customers.
    b. The S&S shall establish affidavit-return procedures to vendors 
and/or publishers, where possible, to return damaged merchandise, 
overstock, or out-of-date publications to reduce APF expenditures 
necessary for ``over-the-water'' transportation.
    5. The S&S shall conduct local ``market-penetration'' surveys. The 
S&S shall also operate a ``customer-complaint'' feedback system to 
monitor its service and provide the best possible service to its 
customers. The results of those surveys shall be provided to the Unified 
Command with recommendations to the S&S board of directors, as required.
    E. Advertising. 1. As U.S. Government publications, the Stars and 
Stripes operate under the authority of the ``Government Printing & 
Binding Regulations'' \4\ issued by the Joint Committee on Printing 
(JCP) of the U.S. Congress. To serve the readership, the JCP has granted 
an exemption to Title III of the ``Government Printing and Binding 
Regulations'', authorizing the Stars and Stripes to carry limited 
advertising so that they may provide information to overseas DoD 
personnel and their families on commercial goods and services. The Stars 
and Stripes are authorized to solicit, sell, publish, and circulate 
display advertising, paid classified ads, and supplement section 
advertising, to include price and brand names of products or services 
and related coupons that are available through authorized Government 
outlets, their concessionaires, NAF activities, or private organizations 
operating on DoD installations under 32 CFR part 212. The Stars and 
Stripes may have run-of-the-paper display advertising not to exceed 25 
percent of the newspaper over a period of 1 month. In addition, the 
Stars and Stripes are authorized to sell, publish, and circulate display 
advertising, and supplement section advertising for consumer goods and 
services not available through authorized Government outlets, their 
concessionaires, NAF activities, or private organizations operating on 
DoD installations under 32 CFR part 212 when sponsored by MWR 
activities, NAFIs, or Type I (Federally Sanctioned) private 
organizations as defined by 32 CFR part 212. Implementation of the 
advertising authority shall be as specified by the Director of the AFIS, 
who shall coordinate with the JCP.
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    \4\ Copies may be obtained from the Joint Committee on Printing of 
the U.S. Congress, 818 Hart Senate Office Building, Washington, DC 
20510.
---------------------------------------------------------------------------

    2. The Stars and Stripes may sell, through commercial advertising 
agencies, run-of-the-paper advertising of DoD recruiting and retention 
programs or activities.
    3. The S&S has the right to refuse any advertising.
    4. The Stars and Stripes may publish news stories on special DoD-
affiliated tours or entertainment opportunities for DoD personnel and 
their dependents in accordance with DoD Instructions 1015.2 \5\ and 
1330.13 \6\.
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    \5\ See footnote 1 to A.1 of this appendix.
    \6\ See footnote 1 to A.1 of this appendix.
---------------------------------------------------------------------------

    5. The S&S may promote the Stars and Stripes, books, periodicals, 
magazines and similar products; authorized advertising; and job printing 
services (except APF) in the Stars and Stripes. Books, periodicals, 
magazines, and similar product promotions may include publications by 
name, title, author, and price. The Stars and Stripes also may promote 
literacy, health, safety, and other community service issues.
    6. The S&S may promote AFRTS schedules, programs, and services in 
their newspapers and bookstores. The S&S shall cooperate with AFRTS 
outlets to promote each others' programs and services as authorized by 
DoD Directive 5120.20 \7\.
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    \7\ See footnote 1 to A.1 of this appendix.
---------------------------------------------------------------------------

    7. As a newspaper operated by the Department of Defense, the Stars 
and Stripes may not:
    a. Contain any material that implies that the DoD Components or 
their subordinate levels endorse or favor a specific commercial and/or 
individually-owned product, commodity, or service.
    b. Subscribe, even at no cost, to a commercial, feature wire, or 
other service whose primary purpose is the advertisement or promotion of 
commercial products, commodities, or services.

[[Page 573]]

    c. Carry any advertisement that implies discrimination as to race, 
age, origin, gender, politics, religion, or physical characteristics 
that include health.
    F. Trademark. The S&S shall trademark the Stars and Stripes in 
overseas areas where it is distributed.

        Appendix C to Part 246--Personnel Policies and Procedures

    A. General Nonappropriated Fund (NAF) Employment Policies. 1. The 
Stars and Stripes (S&S) shall have a personnel system that is business 
oriented in terms of personnel management concepts. The system shall 
provide maximum authority and accountability to the S&S managers at all 
levels and shall endeavor to improve productivity through a system of 
awards and bonuses for high-performing employees. The S&S NAF employees 
shall be governed in accordance with the U.S. Army NAF regulations, 
except where exceptions to general policy have been granted by the 
Unified Commands, the American Forces Information Service (AFIS), and 
the U.S. Army to the S&S.
    2. As DoD employees, the S&S civilian personnel shall abide by 32 
CFR part 40, the Department of Defense, the Unified Command, and the 
U.S. Army regulations, U.S. laws governing Government employees, the 
applicable host-nation laws, and the applicable status of forces 
agreements (SOFA) requirements. The S&S commander/publisher shall ensure 
that the S&S employees are made aware of those provisions before being 
hired and that employees receive adequate personnel training.
    3. The S&S shall endeavor to recruit civilian personnel with solid 
experience, education, and performance credentials in the required 
business, publishing, or editorial disciplines. The S&S, as part of its 
hiring practices, shall specify terms of Government employment and 
include responsibilities, such as those in 32 CFR part 40, so that the 
S&S civilian employees are fully aware of their obligations as DoD 
employees.
    B. Appropriated Fund (APF) Personnel Assignment Authority. 
Appropriated-funded manpower staffing to operate, manage, or support the 
S&S is authorized under DoD Directive 1015.4.\1\
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    C. Military Officer Personnel Procedures. 1. Candidates for the S&S 
military officer positions shall be nominated by the Military Services, 
through the Director of the AFIS, to the Unified Command Commander-in-
Chief (CINC), who shall make the final selection. The S&S military 
officer positions considered for nomination shall be the S&S commander/
publisher and deputy commander(s).
    a. The S&S commander/publisher should have military public affairs 
and joint-Service experience, and a journalism degree.
    b. The S&S officers supervising business operations should have 
experience in DoD Comptroller functions and be familiar with laws and 
regulations applicable to DoD and NAFI business operations. A master's 
degree in business administration is desirable, but not mandatory.
    c. Instead of an advanced degree or military public affairs 
experience, nominees may be authorized, by the Unified Command CINC and 
the AFIS, to substitute a DoD-funded ``training-with-industry'' program 
with comparable newspaper operations in the United States.
    d. The Unified Commands shall forecast military vacancies in the S&S 
to allow time for the Military Services' nomination processes to be 
completed and provide for education before the S&S assignment.
    e. The Military Services shall provide highly qualified officers for 
all S&S assignments at the required grade levels.
    2. Military officers selected for duty as S&S commander/publisher 
shall undergo a ``training-with-industry'' program to provide real-world 
training with a commercial newspaper. That program shall be administered 
by the Director of the AFIS, in coordination with the Military Services 
and the Unified Commands.
    D. Enlisted Members of the Stars and Stripes Editorial Staff. 1. 
Enlisted military personnel shall be assigned to the Stars and Stripes 
editorial staff, as reflected in the designated Unified Command Joint 
Manpower Program (JMP) documents, on a nominative basis. The Military 
Services shall nominate the most mature and professional personnel for 
assignment to the Stars and Stripes editorial staff at the required JMP 
grade- and experience-level, coordinating with the Unified Commands and 
the Director of the AFIS. Nominations shall be considered on a 
competitive basis by the S&S commander/publisher and the Stars and 
Stripes editor. The S&S shall request nominations 18 months before 
projected billet vacancies. The Military Services shall forward 
nominations 6-10 months in advance to the S&S, (ATTN: S&S Commander/
Publisher). The Military Services shall provide the S&S with reasonable 
overlap of military enlisted members serving on the Stars and Stripes 
editorial staff.
    2. The S&S commander/publisher shall coordinate with the Unified 
Commands to ensure that there is an appropriate mixture of Military 
Service billets and/or assignments represented in the S&S to preserve 
the tradition of the Stars and Stripes as joint-Service newspapers.

[[Page 574]]

              Appendix D to Part 246--Editorial Operations

    A. General. 1. The Stars and Stripes shall serve the interests of 
their overseas DoD readership, as commercial daily newspapers serve 
their readers throughout the United States. However, as a Government 
organization, the Stars and Stripes news staff may not take an 
independent editorial position. The Stars and Stripes editorial 
practices and policies shall be in accordance with the highest standards 
of American journalism.
    2. The Stars and Stripes editor, with the concurrence of the S&S 
commander/publisher, and the Unified Command Commander-in-Chief (CINC), 
as the owner of the newspaper, may establish a standard code of personal 
and professional ethics and general editorial principles similar to 
those developed at major metropolitan newspapers or by professional 
journalists in organizations such as the Society of Professional 
Journalists. Those codes usually stress the following:
    a. Responsibility of the newspaper to fully inform its readership.
    b. Freedom of the press.
    c. Commitment to personal and professional ethics.
    d. Emphasis on content accuracy, objectivity, and fair 
representation of all sides of an issue.
    When developed, copies of the code and style guides shall be 
provided to the Unified Command CINC and the Director of the American 
Forces Information Service (AFIS).
    3. The Stars and Stripes editor shall be responsible for developing 
editorial procedures and, if required, a style guide that mirrors daily 
U.S. commercial newspapers.
    4. The editorial content of the Stars and Stripes shall be governed 
by the general principles applicable to quality commercial press as 
follows:
    a. Presentation of News. A major purpose of the Stars and Stripes is 
to provide news and information from varied sources. This aids DoD 
members and their families stationed overseas to exercise their 
democratic citizenship responsibilities.
    b. Commercially-Contracted News, Features, and Opinion Columns. The 
Stars and Stripes purchase (or contract for) and carry news stories, 
features, syndicated columns, comic strips, and editorial cartoons from 
commercial services or sources. Wire-service news, information, and 
feature material may be edited in accordance with source contracts and 
for space requirements. The Stars and Stripes reflect the news of the 
day being carried in comparable U.S. commercial daily newspapers. They 
should reflect different sides of issues over a reasonable amount of 
time.
    c. Staff-Generated Copy. In keeping with the standards established 
for major daily commercial newspapers in the United States, staff-
generated news and features in the Stars and Stripes shall be accurate, 
factual, impartial, and objective. News stories and feature material 
shall distinguish between fact and opinion. Every effort should be made 
to attribute quotations and facts to identified sources. In the case of 
controversial or sensitive stories, the Stars and Stripes editor, or his 
or her designee, shall ascertain the identity of confidential sources, 
as required by normal journalistic practices that ensure that sources 
are credible. The Stars and Stripes may use the normal range of 
journalistic techniques including ``people-on-the-street'' interviews if 
that technique does not constitute a political poll.
    d. Political Campaign News. (1) The Stars and Stripes shall publish 
coverage of the U.S. political campaigns from commercial news sources. 
Presentation of such political campaign news shall be made on an 
impartial, unbiased, and nonpartisan basis reflecting DoD policies of 
non-endorsement of any specific candidate for an elected office. Every 
effort should be made to ensure that the Stars and Stripes reflect the 
full spectrum of campaign news being published in the United States on 
national candidates and issues.
    (2) The Stars and Stripes shall support the Federal Voting 
Assistance Program by carrying factual information about registration 
and voting laws.
    e. The Stars and Stripes shall provide balance in commercial 
syndicated columns. Since the Stars and Stripes may not take an 
independent editorial position, a balanced selection of syndicated 
opinion columns shall be published over a reasonable time period. The 
presentation of syndicated editorial cartoons should reflect the full 
spectrum of topical editorial cartoons being published throughout the 
United States. The S&S commander/publisher shall provide the Unified 
Commands annual assurance that the required balance for syndicated 
opinion columns has been met.
    B. Administrative. 1. The Stars and Stripes shall comply with DoD 
Instruction 1100.13 \1\ on polls, surveys, and straw votes. The Stars 
and Stripes may not conduct a poll, a survey, exit polls, or a straw 
vote on any political campaign. The Stars and Stripes may publish polls, 
surveys, and/or straw votes furnished to the newspaper through its 
contracted wire services. The Stars and Stripes may not conduct lottery 
games.
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.

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[[Page 575]]

    2. The Stars and Stripes shall have the following disclaimer placed 
in the masthead or at the extreme bottom of one of the prominent pages, 
segregated from copy in a box:
    This newspaper is authorized for publication by the Department of 
Defense for members of the Military Services overseas. However, the 
contents of the Stars and Stripes are unofficial, and are not to be 
considered as the official views of, or endorsed by, the U.S. 
Government, including the Department of Defense or the (name of the 
appropriate Unified Command). As a DoD newspaper, the Stars and Stripes 
may be distributed through official channels and use appropriated funds 
for distribution to remote and isolated locations where overseas DoD 
personnel are located.
    The appearance of advertising in this publication, including inserts 
or supplements, does not constitute endorsement by the Department of 
Defense or the Stars and Stripes of the products or services advertised.
    Products or services advertised in this publication shall be made 
available for purchase, use, or patronage without regard to race, color, 
religion, sex, national origin, age, marital status, physical handicap, 
political affiliation or any other nonmerit factor of the purchaser, 
user, or patron.
    C. Editorial. 1. The Stars and Stripes news staffs are authorized to 
gather and report news, good and bad, on the Department of Defense and 
its subordinate commands. All reporting necessarily requires some 
investigation and, as with journalists on commercial newspapers, the 
Stars and Stripes news staff members have the right and need to ask 
questions and expect response to fulfill the S&S mission. However, the 
Stars and Stripes is not an authorized investigative agency, such as 
military law enforcement agencies, investigative bodies, or an Inspector 
General, and shall not function in that capacity. As DoD employees, the 
Stars and Stripes news staff members must adhere to the DoD personnel 
policies that may not usually apply to journalists employed by 
commercial newspapers and must comply with 32 CFR part 40 and, as 
applicable, the Manual for Courts Martial, 1984.\2\
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    \2\ See footnote 1 to B.1. of this appendix.
---------------------------------------------------------------------------

    a. Since most journalistic reporting is investigative by nature, 
``investigative reporting,'' as such, is not banned. The Stars and 
Stripes reporters have the same need to ask questions of sources, and 
expect responses, as do commercial newspaper journalists. While the 
Stars and Stripes staff cannot conduct independent investigations that 
fall under the jurisdiction of various military law enforcement or 
designated investigative agencies, the Stars and Stripes may report on 
open or completed investigations by agencies authorized to perform 
investigative functions. If the Stars and Stripes employees note 
unlawful or criminal actions in their performance of duty, they must 
report such incidents immediately to the S&S commander/publisher or to 
their immediate supervisor, in accordance with 32 CFR part 40, who shall 
also comply with 32 CFR part 40 and, as applicable, DoD Directive 7050.1 
\3\ and DoD Instruction 5240.4.\4\ If there is an authorized 
investigation, a Stars and Stripes reporter or editor cannot protect a 
source as confidential when the information may be required to complete 
the investigation. Coverage of an investigation, from a news 
perspective, should be based on case progress or the resolution provided 
by the investigative agency if considered newsworthy by the Stars and 
Stripes. The Stars and Stripes editorial procedures shall not prohibit 
publishing news of independent investigations furnished by commercial 
media and, therefore, in the public domain.
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    \3\ See footnote 1 to B.1. of this appendix.
    \4\ See footnote 1 to B.1. of this appendix.
---------------------------------------------------------------------------

    b. The Stars and Stripes staff may not knowingly place classified 
information in Stars and Stripes staff-generated material. That does not 
apply to public domain information attributed to commercially contracted 
news, features, or opinion columns.
    2. The Stars and Stripes editorial staffs shall receive the same 
treatment as commercial media.
    a. The Stars and Stripes reporters shall have the same right to ask 
questions, to gain help, to have access, and to attend gatherings 
available to reporters from the commercial media. Commanders or public 
affairs staffs may not use the U.S. Government status of Stars and 
Stripes reporters to block the release of, or access to, otherwise 
releasable news, information, or events. Under the same circumstances, 
the Stars and Stripes reporters may not use their U.S. Government status 
or credentials to gain special treatment, access to restricted areas or 
gatherings, or other advantages that are not given equally to civilian 
media.
    b. In keeping with the ``Principles of Information'' in 32 CFR part 
375 governing release of information to commercial media, the DoD 
Components are expected to make available timely and accurate 
information so that the Stars and Stripes news staffs and readers may 
assess and understand the facts about their military organizations, the 
national defense, and defense strategy. Consistent with statutory 
requirements, information shall be made fully and readily available 
under the principles for the release of information to the media issued 
by the Secretary of Defense. A Government organization may not file a 
request for information against another Government organization under 32 
CFR part 285, which implements the

[[Page 576]]

Freedom of Information Act (FOIA) in the Department of Defense, but it 
is the responsibility of all commands to honor the DoD Principles of 
Information, particularly regarding the intent of open access as 
described in 32 CFR part 285 when responding to queries from Stars and 
Stripes reporters.
    3. To meet organizational responsibilities, the Stars and Stripes 
editor, the S&S commander/publisher, and the Stars and Stripes staff 
members they select, should meet frequently with area commanders and 
public affairs officers and staffs to confer, as their counterparts in 
U.S. commercial daily newspapers do with local government and community 
interest representatives.
    4. When matters of interest to the Stars and Stripes readership cut 
across the Unified Command component command responsibilities, the Stars 
and Stripes editor may use ``special project reporting teams'' to 
examine such concerns. Whether the areas of Stars and Stripes interest 
are military exercises, fast-breaking news affecting the entire Unified 
Command community, or policies that require a greater-than-individual-
reporter effort, the Stars and Stripes editor, through the S&S 
commander/publisher, can gain help by keeping the Unified Command and 
its component command public affairs offices informed of the need for 
theater-wide assistance. Such aid could help dispel morale-damaging 
rumors.
    5. The Stars and Stripes shall conduct readership surveys at least 
once every 3 years in the Unified Commands where the Stars and Stripes 
are distributed. Such formal surveys shall be conducted in accordance 
with DoD Instruction 1100.13. The S&S may make shorter market surveys 
through its bookstore operations to determine changing readership 
interests. The Stars and Stripes is also encouraged to make frequent use 
of readership focus groups throughout the Unified Command.
    6. The Stars and Stripes may review commercial entertainment where 
relevant and where it supports readership interest.
    7. All bureau personnel and field reporters shall have Stars and 
Stripes newsroom experience before being given independent assignments. 
The Stars and Stripes military reporters may wear military or civilian 
clothes at the discretion of the S&S commander/publisher. If authorized 
by the S&S commander/publisher, Stars and Stripes military members may 
be authorized a clothing allowance in accordance with individual Service 
directives.
    8. The Stars and Stripes are both authorized to maintain a 
Washington, DC, bureau located with other correspondent bureaus in the 
OASD (PA) Correspondents' Corridor. A desk will be provided for each 
Stars and Stripes. The S&S shall select the most qualified reporters 
possible for assignment to the bureau. A joint memorandum of 
understanding on personnel support shall be established between the two 
newspapers and approved by the Unified Commands, with a copy provided to 
the Director of the AFIS.

   Appendix E to Part 246--Stars and Stripes (S&S) Board of Directors

    A. Organization and Management. 1. The S&S board of directors of 
each Unified Command shall provide advice to the S&S management, and 
recommend guidance to its Commander-in-Chief (CINC) on all business 
operations. Attendance is at the direction of the Unified Command CINC.
    2. Each Unified Command CINC shall designate the chairman of its S&S 
board of directors.
    3. Each S&S board of directors shall include a member from the 
Unified Command Offices of Public Affairs and the Comptroller, and at 
least one member from each of the Unified Command Service components. 
Members shall be appointed by the Unified Command CINC for 2 years to 
ensure continuity. They shall be the best qualified personnel available 
in business-related disciplines. Members should be at the grade of 0-5, 
GS-12, or higher. Other than the Unified Command and the S&S senior 
representatives, the S&S board members should not be members of any 
other S&S forums or councils. Representatives from the American Forces 
Information Service (AFIS) and one S&S may attend the meetings of the 
other S&S board of directors and have their observations included in the 
minutes, but they are not voting members. Recommendations approved by 
the S&S board of directors may be incorporated by the Unified Command 
CINC into the Unified Command S&S instruction or directive, as 
applicable.
    4. The S&S board of directors should meet at least three times each 
year. The minutes of each meeting shall be approved by the Unified 
Command CINC. The approved S&S board recommendations shall be 
incorporated, as permanent policy, into the Unified Command S&S 
implementing instructions or directives. Where such recommendations 
affect DoD policy, the Unified Commands shall ask the Director of the 
AFIS for resolution. The S&S commander/publisher shall provide 
sufficient documentation to the S&S board members between meetings to 
inform them of on-going business operations and the execution of 
financial actions.
    B. Functions. 1. The S&S board of directors shall monitor planning 
and execution of the S&S business activities.
    2. The S&S board of directors shall aid the S&S commander/publisher 
with evaluation of external factors that impact the S&S, such as adverse 
conditions, as recommended by the S&S commander/publisher, the S&S board 
of directors, or the Unified Command CINC.

[[Page 577]]

    3. Annually, the S&S commander/publisher shall provide a financial 
plan that shall include a capital expenditure budget and a 2-year 
forecast for the S&S board of directors' evaluation and recommendation 
to the Unified Command CINC. The S&S shall also forecast and get 
approval for building and/or construction projects through the S&S board 
of directors.
    4. The S&S shall maintain a 5-year business strategic and corporate 
plan that shall be forwarded to the S&S board of directors. The Unified 
Commands shall forward the on-going strategic and corporate plan to the 
Director of the AFIS for overall DoD strategic goals.



PART 247_DEPARTMENT OF DEFENSE NEWSPAPERS, MAGAZINES AND CIVILIAN 
ENTERPRISE PUBLICATIONS--Table of Contents




Sec.
247.1 Purpose.
247.2 Applicability.
247.3 Definitions.
247.4 Policy.
247.5 Responsibilities.
247.6 Procedures.
247.7 Information requirements.

Appendix A to Part 247--Funded Newspapers and Magazines
Appendix B to Part 247--CE Publications
Appendix C to Part 247--Mailing of DoD Newspapers, Magazines, CE Guides, 
          and Installation Maps; Sales and Distribution of Non-DoD 
          Publications
Appendix D to Part 247--AFIS Print Media Directorate
Appendix E to Part 247--DoD Command Newspaper and Magazine Review System

    Authority: 10 U.S.C. 121 and 133.

    Source: 62 FR 42905, Aug. 11, 1997, unless otherwise noted.



Sec. 247.1  Purpose.

    This part implements DoD Directive 5122.10 \1\ and implements 
policy, assigns responsibilities, and prescribes procedures concerning 
authorized DoD Appropriated Funded (APF) newspapers and magazines, and 
Civilian Enterprise (CE) newspapers, magazines, guides, and installation 
maps in support of the DoD Internal Information Program.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22121.
---------------------------------------------------------------------------



Sec. 247.2  Applicability.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Combatant Commands, the Defense Agencies, and the DoD Field Activities 
(hereafter referred to collectively as ``the DoD Components''). The term 
``Military Services,'' as used herein, refers to the Army, the Navy, the 
Air Force, the Marine Corps, and includes the Coast Guard when operating 
as a Military Service in the Navy. The term Commander, as used herein, 
also means Heads of the DoD Components.
    (b) Does not apply to the Stars and Stripes (S&S) newspapers and 
business operations. S&S guidance is provided in DoD Directive 
5122.11.\2\
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    \2\ See footnote 1 to Sec. 247.1.
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    (c) The term Commander, as used in this part, also means Heads of 
the DoD Components.



Sec. 247.3  Definitions.

    Civilian Enterprise (CE) guides and installation maps. Authorized 
publications containing advertising that are prepared and published 
under contract with commercial publishers. The right to circulate the 
advertising in these publications to the DoD readership constitutes 
contractual consideration to pay for these DoD publications. The 
publications become the property of the command, installation, or 
intended recipient upon delivery in accordance with terms of the 
contract. Categories of these publications are:
    (1) Guides. Publications that provide DoD personnel with information 
about the mission of their command; the availability of command, 
installation, or community services; local geography; historical 
background; and other information. These publications may include 
installation telephone directories at the discretion of the commander.
    (2) Installation maps. Publications designed for orientation of new 
arrivals or for visitors.
    CE publications. CE newspapers, CE magazines, CE guides and 
installation maps produced commercially under the CE concept.

[[Page 578]]

    DoD newspapers. Authorized, unofficial publications, serving as part 
of the commander's internal information program, that support DoD 
command internal communication requirements. Usually, they are 
distributed weekly or monthly. DoD newspapers contain most, if not all, 
of the following elements to communicate with the intended DoD 
readership: command, military department, and DoD news and features; 
commanders' comments; letters to the editor; editorials; commentaries; 
features; sports; entertainment items; morale, welfare, and recreation 
news and announcements; photography; line art; and installation and 
local community news and announcements. DoD newspapers do not 
necessarily reflect the official views of, or endorsement of content by, 
the Department of Defense.
    (1) CE newspapers. Newspapers published by commercial publishers 
under contract with the DoD Components or their subordinate commands. 
The commander or public affairs office provides oversight and final 
approval authority for the news and editorial content of the paper. 
Authorized news and information sources include the Office of the 
Assistant Secretary of Defense for Public Affairs (OASD(PA)), AFIS, the 
Military Departments, their subordinate levels of command, and other 
Government Agencies. CE contractor personnel may provide material for 
use in the newspaper if approved by the commander or public affairs 
officer (PAO), as the commander's representative. These newspapers 
contain advertising sold by the commercial publisher on the same basis 
as for CE guides and installation maps and may contain supplements or 
inserts. They become the property of the command, installation, or 
intended recipient upon delivery in accordance with terms of the 
contract.
    (2) Funded newspapers. Newspapers published by the DoD Components or 
their subordinate commands using appropriated funds. The editorial 
content of these newspapers is prepared by the internal information 
section of the public affairs staff or other internal sources. Usually, 
these newspapers are printed by the Government Printing Office (GPO) or 
under GPO contract in accordance with Government printing regulations. 
DoD Directive 5330.3 \3\ specifies DPS as the sole DoD conduit to the 
GPO.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (3) Overseas Combatant Command newspapers. Newspapers published for 
overseas audiences approved by the Assistant Secretary of Defense for 
Public Affairs (ASD(PA)) to provide world, U.S., and regional news from 
commercial sources, syndicated columns, editorial cartoons, and 
applicable U.S. Government, Department of Defense, Component, and 
subordinate command news and information.
    (4) News bulletins and summaries. Publications of deployed or 
isolated commands and ships compiled from national and international 
news and opinion obtained from authorized sources. News bulletins or 
summaries may be authorized by the next higher level of command when no 
daily English language newspapers are readily available.
    Inserts. A flier, circular, or freestanding advertisement placed 
within the folds of the newspaper. No disclaimer or other labeling is 
required.
    Magazines. Authorized, unofficial publications, serving as part of 
the commander's internal information program. They are produced and 
distributed periodically, usually monthly, and contain information of 
interest to personnel of the publishing DoD component or organization. 
They usually reflect a continuing policy as to purpose, format, and 
content. They are normally non-directive in nature and are published to 
inform, motivate, and improve the performance of the personnel and 
organization. They may be published as funded magazines or under the CE 
concept.
    Option. A unilateral right in a contract by which, for a specified 
time, the Government may elect to acquire additional supplies or 
services called for by the contract, or may elect to extend the term of 
the contract.
    Organizational terms. (1) Command. A unit or units, an organization, 
or an area under the command of one individual. It includes 
organizations headed by senior civilians that require command internal 
information-type media.
    (2) DoD Components. See Sec. 247.2 (a).

[[Page 579]]

    (3) Installation. A DoD facility or ship that serves as the base for 
one or more commands. Media covered by this part may serve the command 
communication needs of one or several commands located at one 
installation.
    (4) Major command. A designated command such as the Air Mobility 
Command or the Army Forces Command that serves as the headquarters for 
subordinate commands or installations that have the same or related 
missions.
    (5) Subordinate levels. Lower levels of command.
    Publications. As used in this part, ``publications'' refers to DoD 
newspapers, magazines, guides and/or installation maps serving the 
commander's internal information program published in both paper and 
electronic format, including digital printing.
    Supplements. Features, advertising sections, or morale, welfare and 
recreation sections printed with or inserted into newspapers for 
distribution. Supplements must be labeled ``Supplement to the (name of 
newspaper).'' Editorial content in supplements is subject to approval by 
the commander or the PAO as his or her agent.



Sec. 247.4  Policy.

    It is DoD policy that:
    (a) A free flow of news and information shall be provided to all DoD 
personnel without censorship or news management. The calculated 
withholding of news unfavorable to the Department of Defense is 
prohibited.
    (b) News coverage and other editorial content in DoD publications 
shall be factual and objective. News and headlines shall be selected 
using the dictates of good taste. Morbid, sensational, or alarming 
details not essential to factual reporting shall be avoided.
    (c) DoD publications shall distinguish between fact and opinion, 
both of which may be part of a news story. When an opinion is expressed, 
the person or source shall be identified. Accuracy and balance in 
coverage are paramount.
    (d) DoD publications shall distinguish between editorials (command 
position) and commentaries (personal opinion) by clearly identifying 
them as such.
    (e) News content in DoD publications shall be based on releases, 
reports, and materials provided by the DoD Components and their 
subordinate levels, DoD newspaper staff members, and other government 
agencies. DoD publications shall credit sources of all material other 
than local, internal sources. This includes, but is not limited to, 
Military Department news sources, American Forces Information Service, 
and command news releases.
    (f) DoD publications may contain articles of local interest to 
installation personnel produced outside official channels (e.g., 
stringers, local organizations), provided that the author's permission 
has been obtained, the source is credited, and they do not otherwise 
violate this part.
    (g) DoD publications normally shall not be authorized the use of 
commercial news and opinion sources, such as Associated Press (AP), 
United Press International (UPI), New York Times, etc., except as stated 
in this paragraph and the following paragraph. The use of such sources 
is beyond the scope of the mission of command or installation 
publications and puts them in direct competition with commercial 
publications. The use of such sources may be authorized for a specific 
DoD newspaper by the cognizant DoD Component only when other sources of 
national and international news and opinion are not available.
    (h) Overseas Combatant Command newspapers published outside the 
United States may purchase or contract for and carry news stories, 
features, syndicated columns, and editorial cartoons from commercial 
services or sources. A balanced selection of commercial news or opinion 
shall appear in the same issue and same page, whenever possible, but in 
any case, over a reasonable time period. Selection of commercial news 
sources, syndicated columns, and editorial cartoons to be purchased or 
contracted for shall be approved by the Commanders. Overseas Combatant 
Command newspapers, news bulletins, and news summaries authorized to 
carry national and world news may include coverage of U.S. political 
campaign news from commercial news sources. Presentation of such 
political campaign news shall be made on

[[Page 580]]

a balanced, impartial, and nonpartisan basis.
    (i) The masthead of all DoD publications shall contain the following 
disclaimer printed in type no smaller than 6-point: ``This (DoD 
newspaper, magazine, guide or installation map) is an authorized 
publication for members of the Department of Defense. Contents of (name 
of the DoD newspaper/magazine/this guide/this installation map) are not 
necessarily the official views of, or endorsed by, the U.S. Government, 
the Department of Defense, or (the name of the publishing DoD 
Component).''
    (j) The masthead of DoD CE publications shall contain the following 
statements in addition to that contained in paragraph (i) of this 
section:
    (1) ``Published by (name), a private firm in no way connected with 
the (Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air 
Force/the U.S. Marine Corps) under exclusive written contract with (DoD 
Component or subordinate level).''
    (2) ``The appearance of advertising in this publication, including 
inserts or supplements, does not constitute endorsement by the 
(Department of Defense/the U.S. Army/the U.S. Navy/the U.S. Air Force/
the U.S. Marine Corps), or (name of commercial publisher) of the 
products or services advertised.''
    (3) ``Everything advertised in this publication shall be made 
available for purchase, use, or patronage without regard to race, color, 
religion, sex, national origin, age, marital status, physical handicap, 
political affiliation, or any other nonmerit factor of the purchaser, 
user, or patron.'' If a violation or rejection of this equal opportunity 
policy by an advertiser is confirmed, the publisher shall refuse to 
print advertising from that source until the violation is corrected.
    (k) DoD publications shall not contain campaign news, partisan 
discussions, cartoons, editorials, or commentaries dealing with 
political campaigns, candidates, issues, or which advocate lobbying 
elected officials on specific issues. DoD CE publications shall not 
carry paid political advertisements for a candidate, party, which 
advocate a particular position on a political issue, or which advocate 
lobbying elected officials on a specific issue. This includes those 
advertisements advocating a position on any proposed DoD policy or 
policy under review.
    (l) DoD newspapers shall support the Federal Voting Assistance 
Program by carrying factual information about registration and voting 
laws, especially those on absentee voting requirements of the various 
States, the District of Columbia, Puerto Rico, and U.S. territories and 
possessions. DoD newspapers shall use voting materials provided by the 
Director, Federal Voting Assistance Program; the OSD; and the Military 
Departments. Such information is designed to encourage DoD personnel to 
register as voters and to exercise their right to vote as outlined in 
DoD Directive 1000.4.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (m) DoD publications shall comply with DoD Instruction 1100.13\5\ 
pertaining to polls, surveys, and straw votes.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (1) The DoD Components and subordinate levels may authorize polls on 
matters of local interest, such as soldier of the week, and favorite 
athlete.
    (2) A DoD publication shall not conduct a poll, a survey, or a straw 
vote relating to a political campaign or issue.
    (3) Opinion surveys must be in compliance with Military Service 
regulations.
    (n) DoD newspapers will support officially authorized fund-raising 
campaigns (e.g., Combined Federal Campaign (CFC)) within the Department 
of Defense in accordance with DoD Directive 5035.1.\6\ News coverage of 
the campaign will not discuss monetary goals, quotas, competition or 
tallies of solicitation between or among agencies. To avoid any 
appearance of endorsement, features and news coverage will discuss the 
campaign in general and not promote specific agencies within the CFC. 
Agencies may be mentioned routinely but must not be a main focus of 
features and news coverage.
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (o) DoD publications shall not:

[[Page 581]]

    (1) Contain any material that implies that the DoD Components or 
their subordinate levels endorse or favor a specific commercial product, 
commodity, or service.
    (2) Subscribe, even at no cost, to a commercial or feature wire or 
other service whose primary purpose is the advertisement or promotion of 
commercial products, commodities, or services.
    (3) Carry any advertisement that violates or rejects DoD equal 
opportunity policy. (See paragraph (j)(3) of this section).
    (p) All commercial advertising, including advertising supplements, 
shall be clearly identifiable as such. Paid advertorials and advertising 
supplements may be included but must be clearly labeled as advertising 
and readily distinguishable from editorial content.
    (q) Alteration of official photographic and video imagery will 
comply with DoD Directive 5040.5.\7\
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (r) Commercial sponsors of Armed Forces Professional Entertainment 
Program events and morale, welfare and recreation events may be 
mentioned routinely with other pertinent facts in news stories and 
announcements in DoD newspapers. (See DoD Instructions 1330.13 \8\ and 
1015.2.\9\
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 247.1.
    \9\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (s) Book, radio, television, movie, travel, and other entertainment 
reviews may be carried if written objectively and if there is no 
implication of endorsement by the Department of Defense or any of its 
Components or their subordinate levels.
    (t) All printing using appropriated funds will be obtained in 
accordance with DoD Directive 5330.3.
    (u) Although DoD internet web sites are normally discouraged from 
linking to commercial activities, the commander may authorize an 
installation web site to be linked to the web site carrying the 
authorized civilian enterprise publication.



Sec. 247.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Public Affairs, 
consistent with DoD Directive 5122.5,\10\ shall:
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (1) Develop policies and provide guidance on the administration of 
the DoD Internal Information Program.
    (2) Provide policy and operational direction to the Director, AFIS.
    (3) Monitor and evaluate overall mission effectiveness within the 
Department of Defense for matters under this part.
    (b) The Director, American Forces Information Service, shall:
    (1) Develop and oversee the implementation of policies and 
procedures pertaining to the management, content, and publication of DoD 
publications encompassed by this part.
    (2) Serve as DoD point of contact with the Joint Committee on 
Printing, Congress of the United States, for matters under this part.
    (3) Serve as the DoD point of contact in the United States for 
Combatant Command newspaper matters.
    (4) Provide guidance to the Combatant Commands, Military 
Departments, and other DoD Components pertaining to DoD publications.
    (5) Monitor effectiveness of business and financial operations of 
DoD publications and provide business counsel and assistance, as 
appropriate.
    (6) Sponsor a DoD Interservice Newspaper Committee and a Flagship 
Magazine Committee composed of representatives of the Military 
Departments to coordinate matters on publications encompassed by this 
part and flagship magazine matters, respectively.
    (7) Provide a press service for joint-Service news and information 
for use by authorized DoD publication editors.
    (c) The Secretaries of the Military Departments shall:
    (1) Provide policy guidance and assistance to the Department's 
publications.
    (2) Encourage the use of CE publications when they are the most 
cost-effective means of fulfilling the command communication 
requirement.

[[Page 582]]

    (3) Ensure that adequate resources are available to support 
authorized internal information products under this part.
    (4) Designate a member of their public affairs staff to serve on the 
DoD Interservice Newspaper Committee.
    (5) Ensure all printing obtained with appropriated funds complies 
with DoD Directive 5330.3.
    (d) The Commanders of Combatant Commands shall:
    (1) Publish Combatant Command newspapers, if authorized. In 
discharging this responsibility, the Commander shall ensure that policy, 
direction, resources, and administrative support are provided, as 
required, to produce a professional quality newspaper to support the 
command mission.
    (2) Ensure that the newspaper is prepared to support U.S. forces in 
the command area during contingencies and armed conflict.



Sec. 247.6  Procedures.

    (a) General. (1) National security information shall be protected in 
accordance with DoD Directive 5200.1\11\ and DoD 5200.1-R.\12\
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    \11\ See footnote 1 to Sec. 247.1.
    \12\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (2) Specific items of internal information of interest to DoD 
personnel and their family members prepared for publication in DoD 
publications may be made available to requesters if the information can 
be released as provided in DoD Directive 5400.7 \13\ and DoD 5400.1-
R.\14\
---------------------------------------------------------------------------

    \13\ See footnote 1 to Sec. 247.1.
    \14\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (3) Editorial policies of DoD publications shall be designed to 
improve the ability of DoD personnel to execute the missions of the 
Department of Defense.
    (4) DoD editors of publications covered under this part shall 
conform to applicable policies, regulations, and laws involving the 
collection, processing, storage, use, publication and distribution of 
information by DoD Components (e.g., libel, photographic image 
alteration, copyright, sexually explicit materials, classification of 
information, protection of sensitive information and U.S. Government 
printing and postal regulations).
    (5) DoD publications shall comply with DoD Directive 5400.11 \15\ 
regarding the DoD privacy program.
---------------------------------------------------------------------------

    \15\ See footnote 1 to Sec. 247.1.
---------------------------------------------------------------------------

    (b) Establishment of DoD newspapers. (1) Commanders are authorized 
to establish Funded newspapers (appendix A to this part) or CE 
newspapers (appendix B to this part) when:
    (i) A valid internal information mission requirement exists.
    (A) Command or installation newspapers provide the commander a 
primary means of communicating mission-essential information to members 
of the command. They provide feedback through such forums as letters to 
the editor columns. This alerts the commander to the emotional status 
and state of DoD knowledge of the command. The newspaper is used as a 
return conduit for command information to improve attitudes and increase 
knowledge.
    (B) News reports and feature stories on individuals and 
organizational elements of the command provides a crossfeed of DoD 
information, which improves internal cooperation and mission 
performance. Recognition of excellence in individual or organizational 
performance motivates and sets forth expected norms for mission 
accomplishment.
    (C) The newspaper improves morale by quelling rumors and keeping 
members informed on DoD information that will affect their futures. It 
provides information and assistance to family members, which improve 
their spirits and thereby the effectiveness of their military service 
and/or civilian member. The newspaper encourages participation in 
various positive leisure-time activities to improve morale and deter 
alcohol abuse and other pursuits that impair their ability to perform.
    (D) The newspaper provides information to make command members aware 
of the hazards of the abuse of drugs and other substances, and of the 
negative impact that substance abuse has on readiness.
    (E) CE newspapers provide advertisements that guide command members 
to outlets where they may fulfill their purchasing needs. A by-product 
of this

[[Page 583]]

commercial contact is increased installation-community communication, 
which enhances mutual support.
    (F) The newspaper increases organizational cohesiveness and 
effectiveness by providing a visual representation of the essence of the 
command itself.
    (G) Good journalistic practices are vital, but are not an end unto 
themselves. They are the primary means to enhance receptivity of command 
communication through the newspaper.
    (H) The newspaper exists to facilitate accomplishment of the command 
or installation mission. That is the only basis for the expenditure of 
DoD resources to produce them.
    (ii) A newspaper is determined by the commander and the next higher 
level of command to be the most cost-effective means of fulfilling the 
command internal communication requirement.
    (2) The use of appropriated funds is authorized to establish a 
Funded newspaper if a CE newspaper is not feasible. The process of 
establishing a newspaper must include an investigation of the 
feasibility of publishing under the CE concept. This investigation must 
include careful consideration of the potential for real or apparent 
conflict of interest. If publishing under the CE concept is determined 
to be feasible, commanders must ensure that they have obtained approval 
to establish the newspaper before authorizing their representatives to 
negotiate a contract with a CE publisher.
    (3) DoD newspapers are mission activities. The use of 
nonappropriated funds for any aspect of their operations is not 
authorized.
    (4) Appropriated funds shall not be used to pay any part of the 
commercial publisher's costs incurred in publishing a CE publication.
    (5) Only one DoD newspaper or magazine is authorized for each 
command or installation.
    (i) If a newspaper is required at an installation where more than 
one command or headquarters is collocated, the host commander shall be 
responsible for publication of one funded or CE newspaper for all. The 
host command shall provide balanced and sufficient coverage of the other 
commands, their personnel, and activities in that locality. These 
commands, or headquarters, shall assist the staff of the host newspaper 
with coverage. If required by unusual circumstance, a commander other 
than the host may publish the single authorized newspaper when the 
majority of affected organizations concur.
    (ii) This provision is not intended to prohibit the headquarters of 
a geographically dispersed command that receives its local coverage in 
the host installation newspaper from publishing a command-wide 
newspaper; nor is it intended to prohibit a command that has information 
needs that are significantly different from the majority of the host 
installation audience from publishing a separate newspaper, when 
authorized by the designated approving authority. (See appendix E to 
this part).
    (iii) Establishment of CE Guides and Installation Maps. When valid 
communication requirements exist, publications in this category may be 
established by the commander, if feasible. (See appendix B to this part) 
Only one CE guide and installation map is authorized for each command or 
installation. The requirements of paragraph (b)(4) of this section, 
apply to CE guides and installation maps. These publications shall be 
approved by the next higher level. Approval authorities shall exercise 
care not to overburden community advertisers.
    (iv) Use of trademark. The DoD Components and their subordinate 
levels shall trademark--State, Federal, or both--the names of their 
publications when possible.
    (v) Use of recycled products. The public affairs office shall, 
whenever possible, based on contractual agreements, use recycled paper 
for publications covered under this part.
    (vi) Mailing requirements and sales and distribution of non-DoD 
publications. See appendix C to this part.
    (vii) AFIS print media directorate. See appendix D to this part.
    (viii) DoD command newspaper and magazine review system. See 
appendix E to this part.
    (6) When, in the opinion of the Assistant Secretary of Defense for 
Public Affairs, or the Combatant Command Commander, a Combatant Command 
newspaper is needed, establishment

[[Page 584]]

shall be directed by the Secretary of Defense. Both appropriated and 
nonappropriated funds may be used in the publication of overseas 
Combatant Command newspapers.
    (7) Establishment of magazines. New magazines shall be approved by 
the Head of the publishing DoD Component. New magazines serving the 
Military Services shall be approved in accordance with Service 
procedures. Only one DoD magazine or newspaper is authorized for each 
command or installation. Magazines are normally financed through 
appropriated funds. When CE magazines are approved, provisions in this 
part regarding advertising and contracting for CE publications apply to 
CE magazines. Magazines must:
    (i) Serve a clearly defined purpose in support of the mission of the 
publishing DoD Component, and the purpose must justify the cost.
    (ii) Not duplicate equivalent magazines serving the same, or 
substantially the same purpose.
    (iii) Be published and distributed efficiently and economically.
    (iv) Be reviewed every two years by the publishing DoD Component to 
ensure they are in compliance with this part, are mission essential, and 
are economically achieving their desired objective.



Sec. 247.7  Information requirements.

    The biennial reporting requirement contained in this part has been 
assigned Report Control Symbol DD-PA(BI) 1638.

         Appendix A to Part 247--Funded Newspapers and Magazines

    A. Purpose. Funded newspapers and magazines support the command 
communication requirements of the DoD Components and their subordinate 
commands. Normally, printing is accomplished by a commercial printer 
under contract or in government printing facilities in accordance with 
DoD Directive 5330.3.\1\ The editorial content of these publications and 
distribution are accomplished by the contracting command. Overseas, 
Funded newspapers are authorized to be printed under contract with the 
S&S. Where printing by S&S is not feasible because of distance or other 
factors, Funded newspapers may be printed by other means. These are 
evaluated on a case-by-case basis with the cognizant DPS office.
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22121.
---------------------------------------------------------------------------

    B. Name. The name of the publication may include the name of the 
command or installation, or, the name of the command or installation may 
appear separately in the nameplate (flag). The emblem of the command or 
installation may be included in the nameplate, also. When possible, the 
DoD Components and their subordinate levels shall trademark the names of 
their publications, as stated in Sec. 247.5(d).
    C. Masthead. The masthead shall include the names of the commanding 
officer and the PAO, the names and editorial titles of the primary staff 
of the publication, and the mailing address and telephone number of the 
editorial staff, in addition to that required in Sec. 247.4(i).
    D. News and editorial materials. The commander and the public 
affairs staff shall generate and select news, information, photographs, 
editorial, and other materials to be used. Authorized news and 
information sources include the Office of the Assistant Secretary of 
Defense for Public Affairs (OASD(PA)), AFIS, the Military Departments, 
their subordinate levels of command, and other Government Agencies. 
Civilian community service news and announcements of benefit to 
personnel assigned to the command or installation and their family 
members may also be used. Photographic images used will be in compliance 
with Sec. 247.4(r).
    E. Assignment of personnel. Military and DoD civilian personnel may 
not be assigned to duty at the premises of the contract printer to 
perform any job functions that are part of the business activities or 
contractual responsibilities of the contract printer. Members of the 
public affairs staff who produce editorial content may work on the 
premises as liaison and monitor to specify and coordinate layout and 
other production details provided for in the command contract with the 
contract printer. A member of the public affairs staff shall review 
proof copy to prevent mistakes.
    F. Funding. The expense of publishing and distributing Funded 
newspapers and magazines is charged to appropriated funds of the 
publishing command.
    G. Printing. Printing of a funded publication shall be handled in 
accordance with DoD Directive 5330.3 in conjunction with the DoD 
Component's printing function with public affairs as the office of 
primary publishing interest. The use of color is authorized if the 
cognizant commander, the DoD Component's printing function and the PAO 
determine it enhances communication.
    H. Distribution. Funded publications may be distributed through 
official channels. Appropriated funds and manpower may be used

[[Page 585]]

for distribution of Funded publications, as required.
    I. Advertising. Funded publications shall not carry commercial 
advertising. As a service, the Funded newspaper may carry nonpaid 
listings of personally owned items and services for sale by members of 
the command. Noncommercial news stories and announcements concerning 
nonappropriated fund activities and commissaries may be published in 
funded publications.
    J. Employment and gratuities. DoD personnel shall not accept any 
gratuities from or employment with any GPO-contracted printers in 
violation of the DoD 5500.7-R,\2\ the Joint Ethics Regulation. In 
addition, DoD personnel whose spouse or children (or other relatives as 
described in the Joint Ethics Regulation) are offered employment by, or 
work for, a GPO-contracted printer, must take appropriate action to 
avoid conflicts of interest.
---------------------------------------------------------------------------

    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

                 Appendix B to Part 247--CE Publications

    A. Purpose. CE publications consist of DoD newspapers, magazines, 
guides, and installation maps. They support command internal 
communications. The commander or public affairs office provides 
oversight and final approval authority for the news and editorial 
content of the publication. CE publishers sell advertising to cover 
costs and secure earnings, print the publications, and may make all or 
part of the distribution. Periodically, CE publishers compete for 
contracts to publish these publications. Neither appropriated nor 
nonappropriated funds shall be used to pay for any part of a CE 
publisher's costs incurred in publishing a CE publication.
    B. Name. The name of the publication may include the name of the 
command or installation, or the name of the command or installation may 
appear separately in the nameplate (flag). The emblem of the command or 
installation may also be included in the nameplate. When possible, the 
DoD Components and their subordinates shall trademark the names of their 
publications, as stated in Sec. 247.6(d).
    C. Masthead. The masthead shall include the following in addition to 
that required in Sec. 247.4 (i) and (j). ``The editorial content of 
this publication is the responsibility of the (name of command or 
installation) Public Affairs Office.'' The names of the commanding 
officer and PAO, the names and editorial titles of the staff assigned 
the duty of preparing the editorial content, and the office address and 
telephone number of the editorial staff shall be listed in the masthead 
of DoD newspapers, but is not required in CE guides and installation 
maps. The names of the publisher and employees of the publisher may be 
listed separately.
    D. News and editorial materials. The commander or the public affairs 
office shall provide oversight and final approval authority for news, 
information, photographs, editorial, and other materials to be used in a 
CE publication in the space allotted for that purpose by written 
contract with the commercial publisher. Authorized news and information 
sources include the OASD(PA), AFIS, the Military Departments and their 
subordinate levels of command, and other Government Agencies. CE 
contractor personnel may provide material for use in the publication if 
approved by the commander or PAO, as the commander's representative. 
Commercial news and opinion sources, such as AP, UPI, New York Times, 
etc., are not normally authorized for use in DoD publications except as 
stated in Sec. 247.4(q). Newspapers may publish community service news 
and announcements of the civilian community for the benefit of command 
or installation personnel and their families. Imagery used will be in 
compliance with Sec. 247.4(r).
    E. Assignment of personnel. Neither military nor DoD civilian 
personnel shall be assigned to duty at the premises of the CE publisher. 
Neither military nor DoD civilian personnel shall perform any job 
functions that are part of the business activities or contractual 
responsibilities of the CE publisher either at the contractor's facility 
or the Government facility. The PAO and staff who produce the non-
advertising content of the CE publication may perform certain 
installation liaison functions on publisher premises including 
monitoring and coordinating layout and design and other publishing 
details set forth in the contract to ensure the effective presentation 
of information. One or more members of the public affairs staff shall 
review proof copy to prevent mistakes. Newspaper text-editing-system 
pagination and copy terminals owned by the CE publisher may be placed in 
the command or installation public affairs office under contractual 
agreement for use by the public affairs staff to coordinate layout and 
ensure that the preparation of editorial material is performed in such a 
way as to enhance the efficiency and effectiveness of the printing and 
publication functions performed by the CE publisher. All costs of these 
terminals shall be borne by the CE newspaper publishers who shall retain 
title to the equipment and full responsibility for any damage to or loss 
of such equipment. The relationship between the public affairs staff and 
employees of the CE contractor is that of Government employees working 
with employees of a private contractor. Supervision of CE employees; 
that is, the responsibility to rate performance, set rate of pay, grant 
vacation time, exercise discipline, assign day-to-day administrative 
tasks, etc.,

[[Page 586]]

remains with the CE publisher. Any modification of the contract must be 
made by the responsible contracting officer. Public affairs staff 
members must be aware that employees of the contractor are not employees 
of the government and should be treated accordingly.
    F. Distribution of CE publications.
    1. A funded newspaper shall not be distributed as an insert to a CE 
newspaper, unless provided for in the CE contract, nor shall a CE 
newspaper be distributed as an insert to a funded newspaper.
    2. Supplements, clearly labeled as such, and advertising inserts, 
may be inserted into and distributed with a CE newspaper.
    3. The commercial publisher of a CE publication shall make as much 
of the distribution to the intended readership as possible. CE 
publications may be distributed through official channels.
    4. Except as authorized by the next higher headquarters for special 
situations or occasions (such as an installation open house), CE 
publications shall not be distributed outside the intended DoD audience 
and retirees, which includes family members. Electronic publication on 
the internet/world wide web is not considered distribution outside the 
intended DoD audience. The CE publisher may provide complete copies of 
each specific issue of a CE publication to an advertiser whose 
advertisement is carried therein.
    5. The CE publisher of a CE newspaper will provide the appropriate 
number of news racks determined by the installation commander for 
publication distribution.
    CE publishers are responsible for maintenance of these racks.
    6. CE guides, magazines, and installation maps may be delivered in 
bulk quantities to the appropriate installation offices to distribute 
these publications through official channels as necessary.
    G. Responsibilities regarding advertising.
    1. Only the CE publisher shall use the space agreed upon for 
advertising. While the editorial content of the publication is 
completely controlled by the installation, the advertising section, 
including its content, is the responsibility of the CE publisher. The 
public affairs staff, however, retains the responsibility to review 
advertisements before they are printed.
    2. Any decision by a CE publisher to accept or reject an 
advertisement is final. The PAO may discuss with a publisher their 
decision not to run an advertisement, but cannot substitute his judgment 
for that of the publisher.
    3. Before each issue of a CE publication is printed, the public 
affairs staff shall review advertisements to identify any that are 
contrary to law or to DoD or Military Service regulations, including 
this part, or that may pose a danger or detriment to DoD personnel or 
their family members, or that interfere with the command or installation 
missions. It is in the command's best interest to carefully apply DoD 
and Service regulations and request exclusion of only those 
advertisements that are clearly in violation of this part. If any such 
advertisements are identified, the public affairs office shall obtain a 
legal coordination of the proposed exclusion. After coordination, the 
public affairs office shall request, in writing if necessary, that the 
commercial publisher delete any such advertisements. If the publisher 
prints the issue containing the objectionable advertisement(s), the 
commander may prohibit distribution in accordance with DoD Directive 
1325.6.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    4. DoD Directive 1325.6 gives the commander authority to prohibit 
distribution on the installation of a CE publication containing 
advertising he or she determines likely to promote a situation leading 
to potential riots or other disturbances, or when the circulation of 
such advertising may present a danger to loyalty, discipline, or morale 
of personnel. Each commander shall determine whether particular 
advertisements to be placed by the publisher in a CE publication serving 
the command or installation may interfere with successful mission 
performance. Some considerations in this decision are the local 
situation, the content of the proposed advertisement, and the past 
performance of the advertiser. Prior to making a determination to 
prohibit distribution of a CE publication, the commander shall obtain a 
legal coordination.
    5. CE publications may carry paid and nonpaid advertising of the 
products and services of nonappropriated fund activities and 
commissaries, if allowed by DoD and Military Service regulations. (See 
DoD Instruction 1015.2 \2\)
---------------------------------------------------------------------------

    \2\ See footnote 1 to section G.3. of this appendix.
---------------------------------------------------------------------------

    6. The Military Departments will coordinate a standard set or ratios 
of advertising-to-editorial copy for multiples of pages for run of the 
publication advertising in CE publications that will be included in all 
DoD Component regulations supplementing this part. The recommended 
annual average is a ratio of 60/40. Inserts and advertising supplements 
will not count in the total ad-to-copy ratio; However, the commander may 
prohibit the distribution of supplemental advertising deemed excessive.
    7. Bingo games and lotteries conducted by a commercial organization 
whose primary business is conducting lotteries may not be advertised in 
CE publications. Non-lottery activities (such as dining at a restaurant 
or

[[Page 587]]

attending a musical performance) of a commercial organization whose 
primary business is conducting lotteries may be advertised in CE 
publications. Exceptions are allowed for authorized State lotteries, 
lotteries conducted by a not-for-profit organization or a governmental 
organization, or conducted as a promotional activity by a commercial 
organization and clearly occasional and ancillary to the primary 
business of that organization. An exception also pertains to any gaming 
conducted by an Indian tribe under 25 U.S.C. 2720. See section D. of 
appendix C to this part.
    H. CE guides and maps.
    1. The name of the publication may include the name and emblem of 
the command or installation.
    2. At the discretion of the commander, an installation telephone 
directory may be included as a section of a CE guide. The telephone 
section shall be part of the guide contract specifications. Separate 
contracts for CE telephone directories are not authorized. Over-run 
printing of the telephone directory/yellow pages section of the 
installation guide is authorized. The number of guides with integral 
telephone directories and the number of over-run copies of the telephone 
directory/yellow pages will be clearly specified in the single guide 
contract. Required communication security information shall be printed 
on the first page of the telephone section and not on the cover of the 
guide. The cover of the guide may notify users that the publication 
contains the telephone directory.
    3. CE contracts for guides and maps shall establish firm delivery 
dates and shall contain provisions to ensure distribution is controlled 
by the command. Delivery dates may vary for guides and maps to make them 
more attractive to advertisers. The contract provisions shall specify 
delivery dates.
    I. Employment and gratuities. DoDpersonnel shall not accept any 
gratuities from or employment with any CE publisher in violation of DoD 
Directive 5500.7-R.\3\ In addition, DoD personnel whose spouse or 
children (or other relations as described in DoD Directive 5500.7-R) are 
offered employment by, or work for, a CE publisher, must take 
appropriate action to avoid conflicts of interest.
---------------------------------------------------------------------------

    \3\ See footnote 1 to section G.3. of this appendix.
---------------------------------------------------------------------------

    J. Contracting for a CE publication.
    1. General. The DoD Components and their subordinate commands are 
authorized to contract in writing for CE publications. The underlying 
premise of the CE concept is that the DoD Components and their 
subordinate commands will save money by transferring certain publishing 
and distribution functions to a commercial publisher selected through a 
competitive process. The CE publication is printed and delivered to the 
command, installation, or its readership in accordance with the terms of 
a written contract. Oral contracts are not acceptable. The right to sell 
and circulate advertising to the complete readership in the CE 
publication provides the publisher revenue to cover costs and secure 
earnings. The command or installation guarantees first publication and 
distribution of locally-produced editorial content in the publication. 
The publication becomes the property of the command, installation, or 
intended reader upon delivery in accordance with terms of the contract.
    2. Contracting process. Whether a first time initiative to establish 
a CE publication or a recompetition of an existing CE contract, the 
process must start with advance planning as to the nature of the 
command's requirements, the contracting strategy, and the market of 
potential advertisers and competitors for the job. The CE contract 
solicitation and the contract itself must contain a statement of work 
that describes in legally sufficient detail the Government's 
requirements and the conditions and restrictions under which the 
contractor will perform. The cognizant contracting office for the CE 
contracting action shall be the contracting office which normally 
provides contracting support to the command for service contracts and 
other procurements of a general nature which are above the simplified 
small purchase threshold. The contracting officer shall combine the 
statement of work with appropriate contractual terms and conditions, 
using 48 CFR chapter I and II as guides, although CE contracts are not 
subject to the FAR or DFARS, because they do not involve the expenditure 
of appropriated funds. The resulting solicitation and contract shall 
completely identify the rights and obligations of both parties. 
Proposals shall be solicited from all known commercial publishers who 
could potentially become the CE contractor. Upon evaluation of the 
competing proposals by the Source Selection Advisory Committee (SSAC) 
and selection of a winner by the selecting official, the CE contract 
shall be awarded by the contracting officer. The CE contract shall not 
require the contractor to pay money to the command or to provide goods, 
services, or other consideration not directly related to the CE 
publication. In the event that only one offer is received, the SSAC may 
recommend to the selecting official that no award be made or that the 
contracting officer enter into negotiations with the sole offeror to 
obtain the best possible service and product for the Government.
    3. Statement of Work (SOW). The SOW should be written to have the CE 
contractor perform as many of the publishing and distribution functions 
as practical to generate

[[Page 588]]

maximum savings to the Department of Defense. In so doing, care must be 
taken to balance Government requirements with a realistic view of the 
advertising revenue potential so as to achieve a contract that is 
commercially viable. The command's internal information needs shall be 
paramount. Some of the key issues that shall be addressed in the SOW 
follow:
    a. A general description of the scope of the proposed contract 
including the name and nature of the publication involved; for example, 
weekly newspaper, monthly magazine, annual guide and installation map. 
Normally, guides and installation maps are included in the same 
contract.
    b. A description of editorial content to be carried; e.g., news, 
features, supplements, and factual information, along with provisions 
addressing the possible inclusion of contractor-furnished advertising 
supplements for newspapers, provided any such supplement shall have the 
prior approval of the commander.
    c. A description of the rules for the inclusion of advertising in 
the publication, substantially as follows: ``The contractor agrees not 
to include in the publication any advertising of the following types: 
(1) paid political advertisements for a candidate, party, or which 
advocate a particular position on a political issue, including 
advertisements advocating a position on any proposed DoD policy or 
policy under review, or which advocate lobbying elected officials on a 
specific issue; (2) advertisements for any establishment declared ``off 
limits'' by the command; (3) advertisements that are contrary to law or 
to DoD or Military Service regulations or that in the government's 
opinion pose a danger or detriment to DoD personnel or their family 
members, or that interfere with the command or installation missions; 
(4) advertisements for bingo games or lotteries conducted by a 
commercial organization whose primary business is conducting lotteries; 
(5) (other restrictions deemed appropriate by the Service/command, if 
any.)'' Additionally, the contract will contain provisions which: (1) 
specify the annual average advertising-to-editorial ratio for newspapers 
and magazines; (2) state that the commander's representative shall have 
the authority to specify newspaper advertising layout when required to 
enhance communication's effectiveness of the publication; and (3) which 
requires the contractor to notify advertisers of the requirements in 
Sec. 247.4(i) and Sec. 247.4(j).
    d. A provision substantially as follows: ``The contractor agrees not 
to enter into any exclusive advertising agreement with any firm, broker, 
or individual for the purpose of selling advertising associated with 
this contract.''
    e. A description of the CE contractor's responsibilities for 
distribution of the publication. This provision should address such 
matters as contractor furnishing of news racks along with contractor 
responsibility for maintenance of these racks.
    f. A description of contractor-owned and/or contractor-furnished 
equipment such as text editing, copy terminals, and modems determined to 
be required to coordinate layout and ensure that the preparation of 
editorial material is performed in such a way as to enhance the 
efficiency and effectiveness of the publication process.
    g. A description of contractor-furnished editorial support services 
determined to be required. Such description must be in terms of the end 
product required; e.g., photography service and/or writer/reporter 
services, and not as a requirement to make available certain contractor 
personnel. In day-to-day performance and administration of the CE 
contract, contractor personnel performing such support services shall 
not be treated in any way as though they are Government employees.
    h. A provision that the use, where economically feasible, of 
recycled paper for internal products will be a consideration for 
awarding the contract, as stated in Sec. 247.6 (e).
    i. SOW's and RFP's for CE newspapers shall specify standard 
newsprint, recyclable, subject to requirements of applicable laws and 
regulations.
    j. For CE magazines, a provision requiring the contractor to provide 
a bulk number of copies of each printing to the Government Printing 
Office (GPO) for distribution to Federal Depository Libraries. The 
number of copies to be provided will be determined on the number of 
libraries desiring to subscribe to the publication. The number could be 
a maximum of 1,400, but has historically averaged approximately 500 to 
600 copies for military magazines. The contractor would be required to 
contact GPO to initiate this procedure at (202)512-1071.
    4. Contract provisions. The CE concept is based on an exception to 
the Government Printing and Binding Regulations \4\ published by the 
Congressional Joint Committee on Printing. While CE contracts are not 
subject to the FAR (48 CFR chapter I) or the DFARS (48 CFR chapter II), 
the FAR contains many clauses that are useful in protecting the 
interests of the Government. The following clauses may be helpful in 
obtaining the best possible CE publication:
---------------------------------------------------------------------------

    \4\ Copies may be obtained, at cost, from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402.
---------------------------------------------------------------------------

    a. Status of FAR clause. To clarify the status of FAR clauses 
appearing in CE contracts, the following clause shall be included in all 
new CE contracts:

    ``The (name of DoD installation/unit/organization) is an element of 
the United States Government. This agreement is a United

[[Page 589]]

States Government contract authorized under the provisions of DoD 
Instruction 5120.4 \5\ as an exception to the Government Printing and 
Binding Regulations published by the Congressional Joint Committee on 
Printing. Although this contract is not subject to the Federal 
Acquisition Regulation (FAR) or the Defense FAR Supplement (DFARS), FAR 
clauses useful in protecting the interests of the Government and 
implementing those provisions required by law are included in this 
contract.''
---------------------------------------------------------------------------

    \5\ See footnote 1 to section G.3. of this appendix.
---------------------------------------------------------------------------

    b. Option clause. Insert a clause substantially the same as the 
following to extend the term of the CE publisher contract:
    (1) ``The Government may extend the term of this contract by written 
notice to the contractor within [insert in the clause the period of time 
in which the contracting officer has to exercise the option]; provided 
that the Government shall give the contractor a preliminary written 
notice of its intent to exercise the option at least 60 days before the 
contract expires. The preliminary notice does not commit the government 
to exercise the option.'' In the case of base closure or realignment the 
publisher has the right to request a renegotiation of the contract.
    (2) ``If the Government exercises this option, the extended contract 
shall be considered to include this option provision.''
    (3) ``The total duration of this contract, including the exercise of 
any options under this clause, shall not exceed 6 years.''
    c. Default clause. Insert the following clause in solicitations and 
contracts:
    (1) ``The Government may, by written notice of default to the 
contractor, terminate this contract in whole or in part if the 
contractor fails to:
    (a) Deliver the CE publications in the quantities required or to 
perform the services within the time specified in this contract or any 
extension;
    (b) Make progress, so as to endanger performance of this contract;
    (c) Perform any of the other provisions of this contract.''
    (2) ``If the Government terminates this contract in whole or in 
part, it may acquire, under the terms and in the manner the contracting 
officer considers appropriate, supplies or services similar to those 
terminated. However, the contractor shall continue the work not 
terminated.''
    (3) ``The rights and remedies of the Government in this clause are 
in addition to any other rights and remedies provided by law or under 
this contract.''
    d. Termination for convenience of the Government. Insert the 
following clause in solicitations and contracts:
    ``The contracting officer, by written notice, may terminate this 
contract, in whole or in part if the services contracted for are no 
longer required by the Government, or when it is in the Government's 
interest, such as with installation closures. Any such termination shall 
be at no cost to the Government.'' The Government will use its best 
efforts to mitigate financial hardship on the publisher.
    5. Term of contract. CE contracts may be entered into for an initial 
period of up to 2 years, and may contain options to extend the contract 
for one or more additional periods of 1 or 2 years duration. The total 
period of the contract, including options, shall not exceed 6 years, 
after which the contract must be recompeted.
    6. Exercise of options. Under normal circumstances, when the 
contractor is performing satisfactorily, options for additional periods 
of performance should be exercised. However, the exercise of the option 
is the exclusive right of the Government.
    7. Modification of the contract. Any changes to the SOW or other 
terms and conditions of the contract shall be made by written contract 
modification signed by both parties.
    8. SSAC. The commander shall appoint an SSAC. The committee shall 
participate in the development of the Source Selection Plan (SSP) before 
the solicitation of proposals, evaluate proposals, and recommend a 
source to the selecting official. Since cost is not a factor in the 
evaluation, award will be based on technical proposals, the offeror's 
experience and/or qualifications, and past performance.
    a. The SSAC shall consist of a minimum of five voting members: a 
chairperson, who shall be a senior member of the command; senior 
representatives from public affairs and printing; and a minimum of two 
other functional specialists with skills relevant to the selection 
process. Each SSAC shall have non-voting legal and contracting advisors 
to assist in the selection process.
    b. In arriving at its recommendations, the SSAC shall follow the SSP 
and avail itself of all relevant information, including the proposals 
submitted, independently derived data regarding offerors' performance 
records, the results of on-site surveys of offerors' facilities, where 
feasible, and in appropriate cases, personal presentations by offerors.
    c. The work of the SSAC must be coordinated with the contracting 
officer to ensure that the process is objective and fair. All 
communications between the offerors and the Government shall be through 
the contracting officer. No member of the SSAC or the selecting official 
shall communicate directly with any offeror regarding the source 
selection.
    d. In cases where a losing competitor requests a debriefing from the 
contracting officer, members of the SSAC may be called upon to 
participate so as to give the losing competitor the most thorough 
explanation

[[Page 590]]

practical as to why its proposal was not successful. No information 
regarding competitors' proposals shall be discussed with the 
unsuccessful offerors during debriefings, discussions, or negotiations.
    9. SSP. A SSP (see sample SSP at attachment 1 to this appendix) must 
be developed early in the planning process to serve as a guide for the 
personnel involved and ensure a fair and objective process and a 
successful outcome. The contracting officer is primarily responsible for 
development of the SSP, in coordination with the PAO and other members 
of the SSAC. Ideally, the SSP should be completed and approved prior to 
issuance of the solicitation; it must be completed and approved before 
the receipt of proposals.
    10. Evaluation criteria and proposal requirements. The solicitation 
must specify, in relative order of importance, the factors the 
Government will consider in selecting the most advantageous proposal. In 
addition, the solicitation must specify the types of information the 
proposal must contain to be properly evaluated. These two aspects of the 
solicitation must closely parallel one another. The contracting officer 
is primarily responsible for development of these two solicitation 
provisions, in coordination with the PAO, legal counsel, and members of 
the SSAC.
    a. Evaluation criteria for award. Drawing upon the SSP, this feature 
of the solicitation must advise offerors what factors the Government 
will consider in evaluating proposals and the relative importance of 
each factor. The sample SSP (attachment 1 to this appendix) provides an 
example of criteria that might be used. Note that under the ``Services 
and/or Items Offered'' factor, paragraph E.2.b. of attachment 1 to this 
appendix, it is necessary to list and indicate the relative importance 
of services and/or items above the minimum requirements of the SOW that 
the command would consider desirable and that, if offered, will enhance 
the offeror's evaluation standing. The offer of services and/or items 
not listed in the evaluation criteria shall not be considered in the 
evaluation of proposals, but may be accepted in the contract award if 
deemed valuable to the Government, PROVIDED the service and/or item 
involved is directly related to producing the publication and not in 
violation of any other statute or regulation. Examples of items that 
cannot be considered during the evaluation process are; press kits, 
laminated maps, economic development reports, or other separate 
publications not an integral part of the CE publication.
    b. Proposal requirements. This provision of the solicitation must 
describe the specific and general types of information necessary to be 
submitted as part of the proposal to be evaluated. Offerors shall be 
notified that unnecessarily elaborate proposals are not desired.

               Attachment 1 to Appendix B to Part 247--SSP

                             A. Introduction

    1. The objectives of this plan are:
    a. To ensure an impartial, equitable, and thorough evaluation of all 
offerors' proposals in accordance with the evaluation criteria presented 
in the request for proposals (RFP).
    b. To ensure that the contracting officer is provided technical 
evaluation findings of the SSAC in such a manner that selection of the 
offer most advantageous to the Government is ensured.
    c. To document clearly and thoroughly all aspects of the evaluation 
and decision process to provide effective debriefings to unsuccessful 
offerors, to respond to legal challenges to the selection, and to ensure 
adherence to evaluation criteria.
    2. This plan will be used to select a CE contractor for publication 
of the -------------------- newspaper (CE guide, magazine, or 
installation map) and will:
    a. Give each SSAC member a clear understanding of his or her 
responsibilities as well as a complete overview of the evaluation 
process.
    b. Establish a well-balanced evaluation structure, equitable and 
uniform scoring procedures, and a thorough and accurate appraisal of all 
considerations pertinent to the negotiated contracting process.
    c. Provide the selecting official with meaningful findings that are 
clearly presented and founded on the collective, independent judgment of 
technical and managerial experts.
    d. Ensure identification and selection of a contractor whose final 
proposal offers optimum satisfaction of the Government's technical and 
managerial requirements as expressed in the RFP.
    e. Serve as part of the official record for the evaluation process.

                      B. Organization and Staffing

    1. The SSAC will consist of the Chairperson and a minimum of four 
other voting committee members plus the non-voting advisors to the SSAC.
    2. The SSAC committee members are:

------------------------------------------------------------------------
                   Name                               Position
------------------------------------------------------------------------
                                           Chairperson
                                           Member
                                           Member
                                           Member
                                           Member
                                           Legal
                                           Advisor \1\
                                           Contract
                                           Advisor \1\
------------------------------------------------------------------------
\1\ Non-voting members.


[[Page 591]]

                           C. Responsibilities

    1. Selecting Official:
    a. Approves the SSP.
    b. Reviews the evaluation and findings of the SSAC.
    c. Considers the SSAC's recommendation of award.
    d. Selects the successful offeror.
    2. Chairperson of the Source Selection Advisory Committee (C/SSAC):
    a. Reviews the SSP.
    b. Approves membership of the SSAC.
    c. Analyzes the evaluation and findings of the SSAC and applies 
weights to the evaluation results.
    d. Approves the SSAC report for submission to the selecting 
official.
    3. Contracting Officer:
    a. Is responsible for the proper and efficient conduct of the entire 
source selection process encompassing solicitation, evaluation, 
selection, and contract award.
    b. Provides SSAC and the selecting official with guidance and 
instructions to conduct the evaluation and selection process.
    c. Receives proposals submitted and makes them available to the 
SSAC, taking necessary precautions to ensure against premature or 
unauthorized disclosure of source selection information.
    4. SSAC members shall:
    a. Familiarize themselves with the RFP and SSP.
    b. Provide a fair and impartial review and evaluation of each 
proposal against the solicitation requirements and evaluation criteria.
    c. Provide written documentation substantiating their evaluations to 
include strengths, weaknesses, and any deficiencies of each proposal.
    5. Legal advisor:
    a. Reviews RFP and SSP for form and legality.
    b. Advises the SSAC members of their duties and responsibilities, 
regarding procurement integrity issues and confidentiality requirements.
    c. Participate in SSAC meetings and provide legal advice as 
required.
    d. Provides legal review of all documents supporting the selection 
decision to ensure legal sufficiency and consistency with the evaluation 
criteria in the RFP and SSP.
    e. Advises the selecting official on the legality of the selection 
decision.

                     D. Administrative Instructions

    1. Evaluation overview. The advisory committee will operate with 
maximum flexibility. Collective discussion by evaluators at committee 
meetings of their evaluation findings is permitted in the interchange of 
viewpoints regarding strengths, weaknesses, and deficiencies noted in 
the proposals relating to evaluation items. Evaluators will not suggest 
or disclose numerical scores or other information regarding the relative 
standing of offerors outside of committee meetings.
    2. Evaluation procedure. The evaluation of offers is based on good 
judgment and a thorough knowledge of the guidelines and criteria 
applicable to each evaluation factor.
    a. Numerical scoring is merely reflective of the composite findings 
of the SSAC. The evaluation scoring system is used as a tool to assist 
the Chairperson of the SSAC in determining the proposal most 
advantageous to the Government.
    b. The most important documents supporting the contract award will 
be the findings, conclusions, and reports of the SSAC.
    3. Safeguarding data. The sensitivity of the proceedings and 
documentation require stringent and special safeguards throughout the 
evaluation process:
    a. Inadvertent release of information could be a source of 
considerable misunderstanding and embarrassment to the Government. It is 
imperative, therefore, for all members of the SSAC to avoid any 
unauthorized disclosures of information pertaining to this evaluation. 
Evaluation participants will observe the following rules:
    (1) All offeror and evaluation materials will be secured when not in 
use (i.e., during breaks, lunch, and at the end of the day).
    (2) All attempted communications by offeror's representatives shall 
be directed to the contracting officer. No communications between 
members of the SSAC or the selecting official and offerors regarding the 
contract award or evaluation is permitted except when called upon under 
the provisions of paragraph J.8.d, of appendix B to this part.
    (3) Neither SSAC members or the selecting official shall disclose 
anything pertaining to the source selection process to any offeror 
except as authorized by the contracting officer.
    (4) Neither SSAC members or the selecting official shall discuss the 
substantive issues of the evaluation with any unauthorized individual, 
even after award of the contract.

                   E. Technical Evaluation Procedures

    1. Evaluation process. Proposals will be evaluated based on the 
following criteria as indicated in Section M of the solicitation: The 
evaluation worksheet (attachment 2 to this appendix) shall be used to 
score the technical factors. Using the technical evaluation worksheet, 
each member of the SSAC will independently review each proposal and 
assign an appropriate number of points to each factor being considered. 
Point scores for each factor will range from ``0'' to ``5'' based on the 
committee member's evaluation of the proposal. Upon completion of 
individual evaluations, the group will meet in committee with the 
Chairperson and arrive at a single numeric score for each factor in the 
proposal.

[[Page 592]]

    2. Criteria. An example of applicable evaluation criteria and their 
relative order of importance are listed below in paragraphs E.2. a. 
through d. of this appendix. Criteria and weights are provided as an 
example only. The SSAC must determine its own weighting factors tailored 
to meet the needs of the particular CE publication and describe the 
relative weights assigned in the RFP; e.g., ``Evaluation factors are 
listed in descending order of importance; criteria 1 is twice 
as important as criteria 2,'' etc.
    a. Technical and production capability. Scores will range from ``0'' 
(unacceptable), to ``5'' (exhibits state-of-the-art, award winning, or 
clearly superior technical ability to produce the required newspaper, 
magazine, guide, or installation map). Factors to be considered for 
newspaper contracts include: level of automation; compatibility of 
automation with existing PAO automation (unless other automation is 
provided); printing capability; production equipment; physical plant 
(capabilities); and driving distance to the plant. Similar factors may 
be considered for magazines, guides and installation maps.
    b. Services and/or items offered. Scores will range from ``0'' 
(unacceptable), to ``5'' (the offer of equipment, such as automation 
equipment; or services, such as editorial or photographic services as 
set forth in the contract solicitation that will greatly enhance the 
newspaper and/or its production). Factors to be considered for 
newspapers include: offer of automation equipment and the quality and 
amount of equipment offered; the quality and amount of services offered; 
the usefulness of the services and/or items to the public affairs office 
in enhancing the newspaper; the impact of the services and/or items on 
other parts of the contract. Similar factors may be considered for 
magazines, guides and installation maps. The offer of equipment or 
services not specifically related to producing the publication will not 
result in the assignment of a higher score.
    c. Past performance record. Scores will range from ``0'' (no 
experience in newspaper, magazine, guide, or installation map publishing 
and/or unsatisfactory, previous performance), to ``5'' (long-term, 
highly successful experience publishing similar newspapers, magazines, 
guides, or installation maps). Factors to be considered include: 
demonstrated ability to successfully produce a CE or similar 
publication; demonstrated printing ability (types of printing, history 
of newspaper, magazine, guide, or installation map printing); 
demonstrated success in contract performance in a timely and responsive 
manner; demonstrated capability to sell advertising and successfully 
recoup publication costs.
    d. Management approach. Scores will range from ``0'' (approach 
unacceptable), to ``5'' (proposal demonstrates a sound and innovative 
approach to interfacing with the PAO and managing the CE publication 
operation). Factors to be considered include: The offeror's proposed 
approach to:
    (1) Interfacing with the PAO staff.
    (2) Controlling the quality and timeliness of the finished product.
    (3) Sale of ads of the type that enhance the publication's image in 
the community and with the readership at large.
    (4) Ensuring that contractor's personnel are properly supervised and 
managed.
    3. Weighting factors. Points will be assigned to the final score of 
each factor in a proposal as determined by multiplying the score 
assigned (e.g., ``0,'' ``1,'' ``2,'' ``3,'' ``4,'' or ``5'') by the 
relative weight of the individual criterion as indicated:

------------------------------------------------------------------------
                                                       Relative
                       Factor                           weight   Maximum
                                                      (percent)   points
------------------------------------------------------------------------
CRITERION 1.........................................        40       200
CRITERION 2.........................................        30       150
CRITERION 3.........................................        20       100
CRITERION 4.........................................        10        50
                                                      .........      500
------------------------------------------------------------------------



(EXAMPLE ONLY):
  CRITERION 1: Score 5 (5 x 40), Total Points..................      200
  CRITERION 1: Score 4 (4 x 30), Total Points..................      120
  CRITERION 1: Score 3 (3 x 20), Total Points..................       60
  CRITERION 1: Score 2 (2 x 10), Total Points..................       20
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
 

    4. Report of findings and recommendations. After the SSAC has 
completed final evaluation of proposals and all weighting has been 
completed, the committee will prepare a written report of its findings 
and recommendations, setting forth the consensus of the committee and 
its composite scores (Sample at attachment 3 to this appendix). The 
Chairperson will sign the report to confirm its accuracy and his 
agreement with the recommendation. All copies of proposals and 
evaluation worksheets will be returned to the contracting officer.

   Attachment 2 to Appendix B to Part 247--Sample Evaluation Worksheet

CONTRACTOR______________________________________________________________

EVALUATOR_______________________________________________________________

DATE____________________________________________________________________
EVALUATION CRITERIA AND SCORES (RANGE 0-5 POINTS FOR EACH)

1. Technical and production
 capability:____________________________________________________________
2. Services and items

 offered:_______________________________________________________________

[[Page 593]]

3. Past performance

 record:________________________________________________________________
4. Management

 approach:______________________________________________________________
NARRATIVE DISCUSSION: \1\

    (\1\ Discussions of strengths, weaknesses, and deficiencies should 
reference the specific evaluation factor involved to ensure that 
proposals are evaluated only against the criterion set forth in the RFP, 
to facilitate debriefings, and to provide an effective defense to any 
challenges regarding the legality of the selection process.)

---------------------------------------------------------------------------
Strengths_______________________________________________________________

Weaknesses______________________________________________________________

Deficiencies____________________________________________________________

Attachment 3 to Appendix B to Part 247--Sample Memorandum for Selecting 
                                Official

SUBJECT: Evaluation of Proposals

 RFP No.________________________________________________________________

    1. All proposals received in response to subject RFP have been 
evaluated by the Source Selection Advisory Committee (SSAC). The results 
and comments are listed below.
    a. Offeror's proposals were rated as follows:

Offeror Name Numerical Score

    b. Summary Narrative Comments.

(This section of the report shall be a summary of the individual 
strengths and weaknesses in each proposal, along with any deficiencies 
that are susceptible to being cured through written or oral discussions 
with the offeror, as noted by the SSC evaluators. This summary should be 
supported by detailed narratives contained on the individual evaluator's 
worksheets.)
    2. Recommendation.

________________________________________________________________________
Chairperson, SSAC

Appendix C to Part 247--Mailing of DoD Newspapers, Magazines, CE Guides, 
  and Installation Maps; Sales and Distribution of Non-DoD Publications

    A. Policy. It is DoD policy that mailing costs shall be kept at a 
minimum consistent with timeliness and applicable postal regulations. 
(See DoD Instruction 4525.7 \1\ and DoD 4525.8-M.\2\ Responsible 
officials shall consult with appropriate postal authorities to obtain 
resolution of specific problems.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

    B. Definition. DoD appropriated fund postage includes all means of 
paying postage using funds appropriated for the Department of Defense. 
These means include meter imprints and stamps, permit imprints, postage 
stamps, and other means authorized by the U.S. Postal Service.
    C. Use of appropriated fund postage.
    1. DoD appropriated fund postage shall be used only for:
    a. Mailing copies to satisfy mandatory distribution requirements.
    b. Mailing copies to other public affairs offices for administrative 
purposes.
    c. Mailing copies to headquarters in the chain of command.
    d. Bulk mailings of DoD newspapers and magazines to subordinate 
units for distribution to members of the units.
    e. Mailing information copies to other U.S. Government Agencies, 
Members of Congress, libraries, hospitals, schools, and depositories.
    f. Mailing of an individual copy of a DoD newspaper, magazine, or CE 
publication in response to an unsolicited request from a private person, 
firm, or organization, if such response is in the best interest of the 
DoD Component or its subordinate levels of command.
    g. Mailing copies of DoD newspapers, magazines, guides, or 
installation maps to incoming DoD personnel and their families to orient 
them to their new command, installation, and community.
    2. DoD appropriated fund postage shall not be used for mailing:
    a. To the general readership of DoD newspapers, magazines, guides, 
and installation maps, unless specifically excepted in this part.
    b. By a CE publisher.
    c. CE publications other than newspapers and magazines in bulk. (See 
paragraph C.1.d. of this section).
    3. Generally, DoD newspapers, magazines, and CE publications shall 
be mailed as second class Requester Publication Rate, third-class bulk, 
or third- or fourth-class mail.
    D. Legal prohibitions. Compliance with 18 U.S.C., 1302 and 1307 is 
mandatory. 18 USC Section 1302 prohibits the mailing of publications 
containing advertisements of any type of lottery or scheme that is based 
on lot or chance. 18 USC 1307 authorizes exceptions pertaining to 
authorized State lotteries, lotteries conducted by a not-for-profit 
organization or a governmental organization, or conducted as a 
promotional activity by a commercial organization and clearly occasional 
and ancillary to the primary business of that organization. An exception 
also pertains to any gaming conducted by an Indian tribe under 25 U.S.C. 
2720. Lottery is defined as containing the following three elements:

[[Page 594]]

    1. Prize (whatever items of value are offered in the particular 
game).
    2. Chance (random selection of numbers to produce a winning 
combination).
    3. Consideration (requirement to pay a fee to play).
    E. Review of mailing and distribution effectiveness.
    1. Mailing and distribution lists shall be reviewed annually to 
determine distribution effectiveness and continuing need of each 
recipient to receive the publication.
    2. Distribution techniques, target audiences, readers-per-copy 
ratios, and use of the U.S. Postal Service to ensure the most economical 
use of mail services consistent with timeliness shall be revalidated 
annually.
    F. Non-DoD publications. A commander shall afford reputable 
distributors of other publications the opportunity to sell or give away 
publications at the activity he or she commands in accordance with DoD 
Directive 1325.6.\3\ Such publications shall not be distributed through 
official channels. These publications may be made available through 
subscription paid for by the recipient or placed in specific general use 
areas designated by the commander, such as the foyers of open messes or 
exchanges. They will be placed only in stands or racks provided by the 
responsible publisher. The responsible publisher will maintain the stand 
or rack to present a neat and orderly appearance. Subscriptions paid for 
by a recipient may be home-delivered by the commercial distributor in 
installation residential areas.
---------------------------------------------------------------------------

    \3\ See footnote 1 to section A. of this appendix.
---------------------------------------------------------------------------

          Appendix D to Part 247--AFIS Print Media Directorate

    A. General. The Print Media Directorate (PMD), an element of AFIS, 
develops, publishes, and distributes a variety of print media products 
that support DoD-wide programs and policies for targeted audiences 
throughout the DoD community. Products include the following:
    1. American Forces Press Service, news and feature articles, 
photographs, and art targeted principally to editors of DoD newspapers.
    2. DEFENSE magazine, a bimonthly magazine featuring articles 
authored by senior military and civilian officials on DoD programs and 
policies. An annual almanac edition highlights DoD's organization and 
statistical information.
    3. Defense Billboard, a monthly poster featuring topics of 
particular interest to junior Military Service members, but applicable 
to general DoD audiences.
    4. Pamphlets, booklets, and other posters covering a variety of 
joint interest information topics.
    5. PMD posts the Press Service on Military Service computer bulletin 
boards and internet world wide web sites. PAOs and editors may download 
text and art in a form readily usable for word processing or desktop 
publishing. All other PMD publications should be requisitioned through 
the Military Service's or organization's publications distribution 
system.
    6. Additional information may be obtained on the internet using the 
AFIS Uniform Resource Locator: http://www.dtic.mil/defenselink/afis/.
    B. Use of materials published by print media directorate. With the 
exception of copyrighted matter, all materials published by PMD may be 
reproduced or adapted for use by DoD newspaper and magazine editors as 
appropriate. When PMD material is edited or revised, accuracy and 
conformance to DoD policy and accepted standards of good taste will be 
maintained. Due to the policy-oriented nature of DEFENSE magazine 
contents, particular care shall be taken to preserve the original 
context, tone, and meaning of any material adapted, revised, or edited 
from this publication.
    C. Eligible activities. The following activities are eligible to 
receive the above listed PMD products:
    1. All authorized DoD newspapers and magazines.
    2. Headquarters of the DoD Components and their subordinate 
commands.
    3. Proponent offices of DoD periodicals published by the DoD 
Components.
    4. Armed Forces Radio and Television Service networks and outlets.
    5. Isolated commands and detachments at which DoD newspapers are not 
readily available.

Appendix E to Part 247--DoD Command Newspaper and Magazine Review System

    A. Purpose. The purpose of the DoD command newspaper and magazine 
review system is to assist commanders in establishing and maintaining 
cost-effective internal communications essential to mission 
accomplishment. The system also enables internal information managers to 
assess the cost and effective use of resources devoted to command 
newspapers and to provide requested reports.
    B. Policy. DoD newspapers and magazines shall be reviewed and 
reported biennially. The review process is not intended to replace day-
to-day quality assurance procedures or established critique programs.
    C. Review criteria. Each newspaper and magazine shall be evaluated 
on the basis of mission essentiality, communication effectiveness, cost-
effectiveness, and compliance with applicable regulations.
    D. Reporting requirements.

[[Page 595]]

    1. The DoD Components (less the Military Departments) shall forward, 
by January 31 of each even numbered year, the information indicated at 
attachment 1 to this appendix for each newspaper published to: Director, 
American Forces Information Service, ATTN: Print Media Plans and Policy, 
601 North Fairfax Street, Alexandria, VA 22314-2007.
    2. No later than April 15 of each even-numbered year, the Secretary 
(or designee) of each Military Department shall forward to the address 
above a report of the Military Department's review of newspapers and 
magazines. This report shall include summary data on total number of 
newspapers and magazines, along with a listing of the information 
indicated at attachment 1 to this appendix.
    3. One information copy of each issue of all DoD newspapers and 
magazines shall be forwarded on publication date to the address in 
paragraph H.1. of this appendix.
    4. Information copies of CE contracts shall be forwarded to the 
address in paragraph H.1. of this appendix, upon request.
    5. Administrative Instructions shall be issued by the Director, 
AFIS, for the annual review and reporting of newspapers and magazines.

Attachment 1 to Appendix E to Part 247--Newspaper and Magazine Reporting 
                                  Data

    As required by section H. of this appendix, the following 
information shall be provided biennially regarding newspapers and 
magazines:
    A. Name of newspaper or magazine.
    B. Publishing command and mailing address.
    C. Printing arrangement:
    1. Government equipment.
    2. Government contract with commercial printer.
    3. CE contract with commercial publisher (provide name, mailing 
address, and phone number of commercial publisher).
    D. Frequency and number of issues per year.
    E. Number of copies printed and estimated readership.
    F. Paper size (metro, tabloid, or magazine format).



PART 248_DEPARTMENT OF DEFENSE PERIODICALS--Table of Contents




Sec.
248.1 Purpose.
248.2 Applicability and scope.
248.3 Definitions.
248.4 Policy.
248.5 Authorities and responsibilities.
248.6 Funding.

    Authority: 5 U.S.C. 301.

    Source: 43 FR 8137, Feb. 28, 1978, unless otherwise noted.



Sec. 248.1  Purpose.

    This part established Department of Defense policies, criteria, and 
controls that govern the publication of DoD periodicals.



Sec. 248.2  Applicability and scope.

    (a) The provisions of this part apply to the Office of the Secretary 
of Defense, the Military Departments, the Organization of the Joint 
Chiefs of Staff, the Unified and Specified Commands, and the Defense 
Agencies, hereafter referred to as ``DoD Components.''
    (b) This Directive does not encompass Armed Forces newspapers and 
civilian enterprise publications as defined in 32 CFR part 202; manuals, 
pamphlets, directives, instructions, regulations, opinions, decisions, 
official notices, circulars, reports, internal information bulletins 
issued by a DoD Component headquarters; and primarily (75 percent or 
more) statistical materials.



Sec. 248.3  Definitions.

    (a) Periodicals within the purview of this part are: Any classified 
or unclassified DoD magazine or newsletter-type publication published at 
regular intervals, at least semiannually, for the purpose of 
disseminating information and material necessary to the issuing 
activity, with a continuing policy as to format, content, and purpose. 
Periodicals are nondirective in nature and are usually published to 
inform and motivate DoD personnel, increase their knowledge, or improve 
their performance.
    (b) Classes of periodicals are:
    (1) Class I: Total annual cost is $20,000, or more.
    (2) Class II: Total annual cost is less than $20,000, but more than 
$5,000.
    (3) Class III: Total annual cost is $5,000, or less.
    (c) The term ``DoD personnel'' refers to military and civilian 
members of the DoD Components.



Sec. 248.4  Policy.

    (a) General. (1) Each DoD Component proposing to publish a DoD 
periodical

[[Page 596]]

shall conduct an evaluation to determine whether or nor the periodical 
should be established. The determination should be based on the 
following:
    (i) The periodical must serve a clearly defined purpose in support 
of the mission of the publishing DoD Component.
    (ii) The purpose to be served must justify the cost.
    (iii) High standards of editorial quality, accuracy, and good taste 
must be maintained.
    (iv) A periodical is the necessary medium of communication between 
the publishing activity and its intended readership.
    (v) Equivalent periodicals serving the same, or substantially the 
same, purpose do not exist.
    (vi) The potential readership can be specified clearly.
    (vii) The periodical can be distributed efficiently and economically 
to the intended readerdship.
    (viii) The nature, amount, and assured sources of information to be 
disseminated justify the foremat, production, specifications, and 
frequency of issue.
    (ix) Adequate resources are available to produce the periodical.

Current or estimated costs are consistent with the periodical's 
objectives.
    (x) The periodical has current applicability and is consonant with 
existing law and DoD policies.
    (2) All personnel responsible for publishing DoD periodicals shall 
comply with the provisions of the current edition of the Government 
Printing and Binding Regulations \1\ and OMB Circular No. A-3.\2\
---------------------------------------------------------------------------

    \1\ Copies available from Superintendent of Documents, U.S. 
Government Printing Office, Washington, D.C. 20402.
    \2\ Copies available from the Office of Management and Budget 
(Publications) New Executive Office building, 726 Jackson Place NW., 
Washington, DC 20503.
---------------------------------------------------------------------------

    (3) DoD periodicals shall not carry partisan political compaign 
articles, editorials, or advertisement.
    (4) No appropriated or nonappropriated funds may be used to defray 
publishing costs of a non-DoD periodical published by a private firm, 
corporation, individual, or organization.
    (5) DoD personnel may not be assigned to serve on the editorial, 
production, or business staffs of a non-DoD periodical that is published 
by a private firm, corporation, individual, or organization.
    (6) Editors of DoD periodicals will conform to applicable 
regulations, laws involving libel and copyright, and postal regulations.
    (7) Dissemination of DoD statistical information in any periodical 
shall comply with the provisions of DoD Directive 5000.20.\3\
---------------------------------------------------------------------------

    \3\ Filed as part of original. Copies may be obtained, if needed, 
from the U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, 
Philadelphia, Pa. 19120. Attention: Code 301.
---------------------------------------------------------------------------

    (b) Elimination of duplication. (1) To eliminate duplication, 
periodicals dealing with common subject areas shall be published along 
DoD-wide functional lines, rather than individual Component lines.
    (2) No DoD Component shall be required to contribute to a 
consolidated common-use periodical more of its resources than it expends 
in publishing a related single-Component periodical.



Sec. 248.5  Authorities and responsibilities.

    (a) The Assistant Secretary of Defense (Public Affairs) shall:
    (1) Establish, and ensure compliance with, supplemental policies, 
standards, and controls governing the publication of DoD periodicals.
    (2) Evaluate the effectiveness of DoD Component policies, standards, 
and controls that relate to DoD periodicals, and effect such changes as 
may be warranted.
    (3) Institute programs, in conjunction with the DoD Components, for 
the purpose of increasing the proficiency of editorial personnel in 
editorial writing, periodical production, management, and cost 
effectiveness.
    (4) Establish a research resource to:
    (i) Provide professional guidance to DoD Components in the conduct 
of mass communications research.
    (ii) Evaluate completed research.
    (iii) Coordinate periodical research within the DoD Components.
    (5) In coordination with the DoD Components concerned, examine the

[[Page 597]]

apparent duplication of periodicals and direct the elimination of those 
found to be duplicative or of marginal value. (See Sec. 248.4(b).)
    (b) The Head of each DoD Component shall designate an office to 
monitor the Component's internal periodicals, and:
    (1) Conduct a coordinated review of its standards for publication, 
distribution, evaluation, review and approval;
    (2) Maintain a current inventory of its periodicals; and
    (3) Submit such reports as may be required by the ASD(PA).



Sec. 248.6  Funding.

    DoD periodicals will be financed within available appropriated or 
nonappropriated funds and will be produced as economically as possible, 
consistent with the need for efficient communication (See DoD 
Instruction 7041.3. \4\) Funding will be in accordance with established 
management practices of the DoD Component concerned.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 248.4(a)(2).
---------------------------------------------------------------------------



PART 249_PRESENTATION OF DoD-RELATED SCIENTIFIC AND TECHNICAL PAPERS AT 
MEETINGS--Table of Contents




Sec.
249.1 Purpose.
249.2 Applicability and scope.
249.3 Definitions.
249.4 Policy.
249.5 Procedures.
249.6 Responsibilities.

    Authority: 10 U.S.C. 130.

    Source: 52 FR 41708, Oct. 30, 1987, unless otherwise noted.



Sec. 249.1  Purpose.

    This part amplifies policy set forth in DoD Directive 3200.12,\1\ 
assigns responsibilities, prescribes procedures, and provides guidance 
for consideration of national security concerns in the dissemination of 
scientific and technical information in the possession or under the 
control of the Department of Defense at conferences and meetings. It 
supports current policies regarding classified meetings and requirements 
for review of scientific and technical papers; provides guidance for 
reviewing and presenting papers containing export-controlled DoD 
technical data; establishes procedures for containing DoD advice on 
independently-produced scientific and technical papers; and provides 
criteria for identifying fundamental research activities performed under 
contract or grant that are excluded from review requirements.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the U.S. Naval 
Publications and Forms Center, 5801 Tabor Avenue, Attn: Code 301, 
Philadelphia PA 19120.
---------------------------------------------------------------------------



Sec. 249.2  Applicability and scope.

    This part applies to the Office of the Secretary of Defense (OSD) 
DoD Field Activities, the Military Departments, the Organization of the 
Joint Chiefs of Staff (OJCS), the Defense Agencies, and the Unified and 
Specified Commands (hereafter referred to collectively as ``DoD 
Components'').



Sec. 249.3  Definitions.

    Contracted fundamental research. Includes grants and contracts that 
are (a) funded by budget Category 6.1 (``Research''), whether performed 
by universities or industry or (b) funded by budget Category 6.2 
(``Exploratory Development'') and performed on-campus at a university. 
The research shall not be considered fundamental in those rare and 
exceptional circumstances where the 6.2-funded effort presents a high 
likelihood of disclosing performance characterics of military systems or 
manufacturing technologies that are unique and critical to defense, and 
where agreement on restrictions have been recorded in the contract or 
grant.
    DoD personnel. All civilian officers and employees, including 
special Government employees, of all DoD Components, and all active duty 
officers (commissioned and warrant) and enlisted members of the Army, 
Navy, Air Force, and Marine Corps.



Sec. 249.4  Policy.

    It is DoD policy to:
    (a) Encourage the presentation of scientific and technical 
information generated by or for the Department of Defense at technical 
meetings consistent with United States laws and the requirements of 
national security.

[[Page 598]]

    (b) Permit DoD Components to conduct scientific and technical 
conferences, and to permit DoD Component personnel to attend and 
participate in scientific and technical conferences that are of 
demonstrable value to the Department of Defense, and consult with 
professional societies and associations in organizing meetings of the 
societies and associations that are mutually beneficial.
    (c) Allow the publication and public presentation of unclassified 
contracted fundamental research results. The mechanism for control of 
information generated by DoD-funded contracted fundamental research in 
science, technology, and engineering performed under contract or grant 
at colleges, universities, and non-government laboratories is security 
classification. No other type of control is authorized unless required 
by law.
    (d) Release information at meetings in a manner consistent with 
statutory and regulatory requirements for protecting the information. 
Such requirements include, but are not limited to, protection of 
classified, unclassified export-controlled, proprietary, privacy, and 
foreign government provided information.
    (e) Provide timely review of DoD employee and contractor papers 
intended for presentation at scientific and technical conferences and 
meetings, and if warranted and authorized by contract in the case of 
contractor employees, prescribe limitations on these presentations. 
Dissemination restrictions shall be used only when appropriate authority 
exists.
    (f) Assist DoD contractors and, when practical, others in 
determining the sensitivity of or the applicability of export controls 
to technical data proposed for public disclosure.
    (g) Approve release of classified or controlled unclassified DoD 
information to foreign representatives when such release promotes mutual 
security or advances the interests of an international military 
agreement or understanding in accordance with foreign disclosure 
policies of the Department of Defense. Presentation of such information 
at technical meetings attended by foreign representatives is appropriate 
when the release is made under the terms of existing security 
arrangements and when the Department of Defense and receiving government 
have established an understanding or agreement in that specific 
scientific or technical area.
    (h) Refrain from interfering with the planning and organizing of 
meetings sponsored and conducted by non-government organizations. The 
type and level of DoD participation in such meetings will be determined 
taking account of such factors as benefit to the Department of Defense 
and how the meetings are being conducted.



Sec. 249.5  Procedures.

    (a) General. Conferences organized by DoD Components, DoD 
contractors, scientific and engineering societies, and/or professional 
associations, among others, can enhance the value of research and 
development sponsored by the Federal Government, and in such cases 
require full cooperation of all involved parties to obtain maximum 
benefits. Every effort should be made to develop presentations that are 
appropriate for delivery to the widest appropriate audience consistent 
with the interests of national security. In general, national security 
concerns related to the disclosure of DoD scientific and technical 
information at meetings are influenced by two mutually dependent 
factors; i.e. the sensitivity of the material to be presented, and the 
identity of proposed recipients of the material. These considerations 
and their impact on proposed meetings can be evaluated only through 
consultation among authors, conference organizers, and officials 
responsible for authorizing release of DoD information. The purpose of 
this consultation is to ascertain which combination of factors will 
support the most productive exchange of information consistent with U.S. 
laws and the requirements of national security. Interaction among 
concerned parties should commence at least six months before the meeting 
date.
    (b) Information to be presented. Possibilities range from completely 
unclassified/unlimited through classified information. Other 
considerations having

[[Page 599]]

an impact on meeting organization include, but are not limited to, 
proprietary data, export-controlled data, Privacy Act information, and 
foreign government-provided data.
    (1) Classified information may be presented only at meetings 
organized in accordance with DoD Directive 5200.12.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 249.1.
---------------------------------------------------------------------------

    (2) Unclassified export-controlled DoD technical data may be 
presented only in sessions where recipients are eligible to receive such 
data as established by 32 CFR part 250.
    (3) Presentation of proprietary information, privacy data, and 
foreign government-provided data requires approval of the party 
controlling that information.
    (c) Location of meetings and access controls. To a large degree 
location of and access to meetings are dependent on the type of material 
to be presented.
    (1) Papers which have been cleared for public release may be 
presented at any location and before any audience.
    (2) Criteria established by 32 CFR part 250 for releasing 
unclassified documents containing unclassified export-controlled DoD 
technical data also are applicable to presentations containing such 
data. Unclassified export-controlled DoD technical data may be released 
to:
    (i) United States and Canadian government officials, with the 
understanding that the information is to be used for official government 
purposes only. Technical data that falls outside the exemptions for 
export to Canada in United States export regulations may not be 
transferred under this and the following provision.
    (ii) United States and Canadian citizens and resident aliens when 
disclosure is subject to the terms of a current (DD Form 2345) 
``Militarily Critical Technical Data Agreement.''
    (iii) Foreign nationals and United States citizens acting as 
representatives of foreign interests where disclosure is made in 
accordance with a license, approval, or exemption under the 
International Traffic in Arms Regulations or the Export Administration 
Regulations.
    (3) Non-government organizations who organize meetings in the United 
States at which unclassified export-controlled DoD technical data is to 
be presented will be required to ensure that physical access to the 
presentations is limited to those eligible to receive such data (as 
described in paragraph (c)(2) of this section) before being permitted to 
present such data.
    (4) Meetings sponsored by a United States Government agency at which 
unclassified export-controlled DoD technical data is to be presented may 
be held in any location in the United States when control of physical 
access to the sessions is provided by a United States Government 
employee or a contractor specifically tasked by Department of Defense 
for that duty.
    (5) Presentation of unclassified export-controlled DoD technical 
data in meetings held outside the United States may be permitted on a 
case-by-case basis after review of the situation by officials authorized 
to do so by the Director of Defense Research and Engineering, Office of 
the Under Secretary of Defense (Acquisition) or heads of DoD Components.
    (6) When it is necessary to limit access to presentations of DoD-
related scientific and technical papers, and private or professional 
organizations are unwilling or unable to provide required controls, DoD 
Components may, at their discretion, conduct meetings which correlate in 
place and topic with open meetings of such societies to take advantage 
of the fact that interested parties are already gathered.
    (7) Classified information may be presented only at meetings held in 
a secure government or cleared contractor facility, unless a waiver has 
been granted in accordance with DoD Directive 5200.12. Personnel access 
controls for classified meetings also are specified in DoD Directive 
5200.12.
    (d) Foreign representative access to meetings. (1) For classified 
meetings sponsored by the Department of Defense and conducted at a 
contractor facility, guidelines for foreign participation are 
established in DoD Directive

[[Page 600]]

5230.11 \3\ and DoD Instruction 5230.20.\4\ Guidelines for the reporting 
of foreign participation in classified meetings are contained in DoD 
Directive 5200.12.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 249.1.
    \4\ See footnote 1 to Sec. 249.1.
---------------------------------------------------------------------------

    (2) For unclassified meetings sponsored and conducted by 
organizations other than the Department of Defense, the sole 
responsibility of determining whether foreign access is appropriate 
rests with the sponsor. The level and type of DoD participation in the 
meeting shall take into account the presence of foreign representatives, 
if any.
    (3) In order to advance the interests of an international military 
agreement or understanding, the Department of Defense may wish to 
release to certain foreign nationals unclassified export-controlled DoD 
technical data being presented at unclassified, restricted access 
meetings sponsored and conducted by non-government societies and 
associations. Release in such cases by Department of Defense shall be 
pursuant to appropriate exemptions to the International Traffic in Arms 
Regulations (22 CFR part 126), which relieves the society or association 
from responsibility to obtain export approvals for these presentations. 
DoD sponsorship is for the sole purpose of granting access to DoD-
sponsored technical information. When societies or associations agree to 
DoD sponsorship of foreign attendance under these circumstances, the 
visit request procedures established in DoD Instruction 5230.20 shall be 
used to obtain and process requests from foreign representatives for 
sponsorship, and to inform the requestor and the meeting sponsor of the 
decision to release the information and conditions pertaining to such 
release.
    (e) Clearance for public release. A review is required by DoD 
Directive 5230.9 \5\ for all public releases by DoD personnel, including 
all presentations from DoD laboratories. DoD contractors are required to 
submit proposed presentations for review if that is a specific 
contractual requirement. Papers resulting from unclassified contracted 
fundamental research are exempt from prepublication controls and this 
review requirement.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 249.1.
---------------------------------------------------------------------------

    (1) Proposed presentations shall be reviewed to:
    (i) Determine what information, if any, in the submitted paper and/
or abstract is subject to security classification, is subject to 
withholding from public disclosure under 32 CFR part 250 or is otherwise 
restricted by statute, regulation or DoD policy.
    (ii) Recommend specific changes, if any, to allow the paper to be 
presented as requested.
    (iii) Indicate on the document its releasibility in original and 
amended versions.
    (iv) Provide information on appeal procedures to be followed if 
requested clearance is denied.
    (2) Reviews shall be completed as speedily as possible after receipt 
of the document by an appropriate public clearance authority. If a 
review cannot be completed in a timely manner, an explanation shall be 
provided. Every effort shall be made to complete the review in:
    (i) Ten working days for all abstracts.
    (ii) Twenty working days for papers submitted for presentation at 
sessions that will have unlimited access.
    (iii) Thirty working days for papers submitted for presentation at 
unclassified sessions that will have limited access.
    (iv) Thirty working days for papers submitted for presentation at 
sessions that will be classified.
    (f) Voluntary submissions. Authors or organizations not subject to 
mandatory reviews may submit their papers to DoD activities to obtain 
advice on national security concerns. Resources permitting, DoD public 
release activities shall arrange review of the papers and
    (1) Inform the author that the Department of Defense has no 
objection to public presentation or
    (2) Inform the author that the Department of Defense advises that 
presentation in a public forum would not be in the interest of national 
security, and provide appropriate reasons for the determination. The 
clearance for public presentation, paragraph (f)(1) of this section, 
satisfies an exemption from requirements for government review under the 
International Traffic in

[[Page 601]]

Arms Regulations. The latter determination, paragraph (f)(2) of this 
section, does not legally bar presentation. It is an advisory statement 
that, for the presentation concerned, Department of Defense is not 
providing the authority for public release. Such DoD action does not 
preclude recourse by the author through normal State Department export 
license procedures.
    (g) Submission procedures. (1) Authors shall submit full text and/or 
abstract of paper for review before submitting it to conference 
organizers. Clearance of abstract does not satisfy any requirement for 
clearance of the full paper. Requests for review shall identify the 
conference sponsor(s), site, and access restrictions specified by the 
session organizers, and shall state whether the paper is for 
presentation at a session that is to be unclassified with unlimited 
access, unclassified with limited access, or classified. Level of 
classification and access restrictions shall be specified, where 
appropriate.
    (2) Papers shall be submitted for public and/or foreign disclosure 
clearance in sufficient time to allow adequate review and possible 
revision. Authors should allow adequate time for their presentation to 
reach the appropriate review authority in addition to the review targets 
set in paragraph (e)(2) of this section.
    (3) At time of submission of the full text of the presentation to 
the Conference Program Committee, authors should state that their papers 
have been approved for presentation at the meeting and specify the 
security level of degree of access control required. When submitting 
abstracts that have been cleared for release, authors should indicate 
when and what kind of approval is expected on the presentation in its 
final form.
    (h) In accordance with DoD Directive 3200.12, copies of proceedings 
and/or reprints of papers sponsored by the Department of Defense for all 
scientific and technical meetings will be provided to the Defense 
Technical Information Center, Defense Logistics Agency, Cameron Station, 
Alexandria, VA 22304 for secondary distribution.



Sec. 249.6  Responsibilities.

    (a) The Under Secretary of Defense for Acquisition (USD(A)) shall be 
responsible for implementing this part.
    (b) The Deputy Under Secretary of Defense for Research and Advanced 
Technology shall:
    (1) Administer and monitor compliance with this part.
    (2) Provide, when necessary, technical assistance to DoD Components 
in determining sufficiency of protection of unclassified technical 
information that is to be presented at meetings.
    (3) Provide, upon request, information and advice regarding controls 
on unclassified DoD information to scientific and engineering societies 
and professional associations.
    (c) The Under Secretary of Defense for Policy (USD(P)) shall develop 
and promulgate, as required, policy guidance to DoD Components for 
implementing this instruction.
    (d) The Deputy Under Secretary for Defense (Policy) (DUSD(P)) shall 
establish and monitor compliance with policies and procedures for 
disclosure of classified information at meetings.
    (e) The Heads of DoD Components shall:
    (1) Promulgate this part within 180 days.
    (2) Designate an individual who will be responsible for reviewing 
and approving requests for export-controlled meetings outside the United 
States, and for ensuring compliance with this part.



PART 250_WITHHOLDING OF UNCLASSIFIED TECHNICAL DATA FROM PUBLIC 
DISCLOSURE--Table of Contents




Sec.
250.1 Purpose.
250.2 Applicability and scope.
250.3 Definitions.
250.4 Policy.
250.5 Procedures.
250.6 Responsibilities.
250.7 Pertinent portions of Export Administration Regulations (EAR).
250.8 Pertinent portions of International Traffic in Arms Regulations 
          (ITAR).
250.9 Notice to accompany the dissemination of export-controlled 
          technical data.

    Authority: Sec. 1217, Pub. L. 98-94, (10 U.S.C. 140c).

[[Page 602]]


    Source: 49 FR 48041, Dec. 10, 1984, unless otherwise noted.



Sec. 250.1  Purpose.

    This part establishes policy, prescribes procedures, and assigns 
responsibilities for the dissemination and withholding of technical 
data.



Sec. 250.2  Applicability and scope.

    (a) This part applies to:
    (1) All unclassified technical data with military or space 
application in the possession of, or under the control of, a DoD 
Component which may not be exported lawfully without an approval, 
authorization, or license under E.O. 12470 or the Arms Export Control 
Act. However, the application of this part is limited only to such 
technical data that disclose critical technology with military or space 
application. The release of other technical data shall be accomplished 
in accordance with DoD Instruction 5200.21 and DoD 5400.7-R.
    (2) The Office of the Secretary of Defense (OSD) and activities 
support adminstratively by OSD, the Military Departments, the 
Organization of the Joint Chiefs of Staff, the Defense Agencies, and the 
Unified and Specified Commands (hereafter referred to collectively as 
``DoD Components'').
    (b) This part does not:
    (1) Modify or supplant the regulations promulgated under E.O. 12470 
or the Arms Export Control Act governing the export of technical data, 
that is, 15 CFR part 379 of the Export Administration Regulations (EAR) 
and 22 CFR part 125 of the International Traffic in Arms Regulations 
(ITAR).
    (2) Introduce any additional controls on the dissemination of 
technical data by private enterprises or individuals beyond those 
specified by export control laws and regulations or in contracts or 
other mutual agreements, including certifications made pursuant to Sec. 
250.3(a). Accordingly, the mere fact that the Department of Defense may 
possess such data does not in itself provide a basis for control of such 
data pursuant to this part.
    (3) Introduce any controls on the dissemination of scientific, 
educational, or other data that qualify for General License GTDA under 
15 CFR 379.3 of the EAR (see Sec. 250.7) or for general exemptions 
under 22 CFR 125.11 of the ITAR (see Sec. 250.8).
    (4) Alter the responsibilities of DoD Components to protect 
proprietary data of a private party in which the Department of Defense 
has ``limited rights'' or ``restricted rights'' (as defined in 32 CFR 9-
201(c) and 9-601(j) of the DoD Acquisition Regulation, or which are 
authorized to be withheld from public disclosure under 5 U.S.C. 
552(b)(4).
    (5) Pertain to, or affect, the release of technical data by DoD 
Components to foreign governments, international organizations, or their 
respective representatives or contractors, pursuant to official 
agreements or formal arrangements with the U.S. Government, or pursuant 
to U.S. Government-licensed transactions involving such entities or 
individuals. In the absence of such U.S. Government-sanctioned 
relationships, however, this part does apply.
    (6) Apply to classified technical data. After declassification, 
however, dissemination of such data that are within the scope of Sec. 
250.2(a)(1) is governed by this part.



Sec. 250.3  Definitions.

    (a) Qualified U.S. contractor.\1\ A private individual or enterprise 
(hereinafter described as a ``U.S. contractor'') that, in accordance 
with procedures established by the Under Secretary of Defense for 
Research and Engineering, certifies, as a condition of obtaining export-
controlled technical data subject to this Directive from the Department 
of Defense, that:
---------------------------------------------------------------------------

    \1\ Canadian contractors may be qualified in accordance with this 
part for technical data that do not require a license for export to 
Canada under 22 CFR 125.12 of the ITAR and 15 CFR 379.4(d) and 379.5(e) 
of the EAR submitting an equivalent certification to the U.S. Department 
of Defense.
---------------------------------------------------------------------------

    (1) The individual who will act as recipient of the export-
controlled technical data on behalf of the U.S. contractor is a U.S. 
citizen or a person admitted lawfully into the United States for 
permanent residence and is located in the United States.

[[Page 603]]

    (2) Such data are needed to bid or perform on a contract with the 
Department of Defense, or other U.S. Government agency, or for other 
legitimate business purposes \2\ in which the U.S. contractor is 
engaged, or plans to engage. The purpose for which the data are needed 
shall be described sufficiently in such certification to permit an 
evaluation of whether subsequent requests for data, pursuant to Sec. 
250.5(d)(2) are related properly to such business purpose.
---------------------------------------------------------------------------

    \2\ This does not require a contract with or a grant from the U.S. 
Government.
---------------------------------------------------------------------------

    (3) The U.S. contractor acknowledges its responsibilities under U.S. 
export control laws and regulations (including the obligation, under 
certain circumstances, to obtain an export license prior to the release 
of technical data within the United States) and agrees that it will not 
disseminate any export-controlled technical data subject to this part in 
a manner that would violate applicable export control laws and 
regulations.
    (4) The U.S. contractor also agrees that, unless dissemination is 
permitted by Sec. 250.5(h), it will not provide access to export-
controlled technical data subject to this part to persons other than its 
employees or persons acting on its behalf, without the permission of the 
DoD Component that provided the technical data.
    (5) To the best of its knowledge and belief, the U.S. contractor 
knows of no person employed by it, or acting on its behalf, who will 
have access to such data, who is debarred, suspended, or otherwise 
ineligible from performing on U.S. Government contracts; or has violated 
U.S. export control laws or a certification previously made to the 
Department of Defense under the provisions of this part.
    (6) The U.S. contractor itself is not debarred, suspended, or 
otherwise determined ineligible by any agency of the U.S. Government to 
perform on U.S. Government contracts, has not been convicted of export 
control law violations, and has not been disqualified under the 
provisions of this part. When the certifications required by paragraphs 
(a) (5) and (6) of this section, cannot be made truthfully, the U.S. 
contractor may request the certification be accepted based on its 
description of extenuating circumstances.
    (b) Controlling DoD Office. The DoD activity that sponsored the work 
that generated the technical data or received the technical data on 
behalf of the Department of Defense and therefore has the responsibility 
for determining the distribution of a document containing such technical 
data. In the case of joint sponsorship, the controlling office is 
determined by advance agreement and may be either a party, a group, or a 
committee representing the interested activities or DoD Components. (The 
controlling DoD office is identified on each export-controlled document 
in accordance with DoD Directive 5230.24.
    (c) Critical Technology. Technologies that consist of (1) arrays of 
design and manufacturing know-how (including technical data); (2) 
keystone manufacturing, inspection, and test equipment; (3) keystone 
materials; and (4) goods accompanied by sophisticated operation, 
application, or maintenance know-how that would make a significant 
contribution to the military potential of any country or combination of 
countries and that may prove detrimental to the security of the United 
States (also referred to as militarily critical technology).
    (d) Other legitimate business purposes. Include:
    (1) Providing or seeking to provide equipment or technology to a 
foreign government with the approval of the U.S. Government (for 
example, through a licensed direct foreign military sale).
    (2) Bidding, or preparing to bid, on a sale of surplus property.
    (3) Selling or producing products for the commercial domestic 
marketplace or for the commercial foreign marketplace, providing that 
any required export license is obtained.
    (4) Engaging in scientific research in a professional capacity.
    (5) Acting as a subcontractor to a concern described in paragraphs 
(d) (1) through (4) of this section; or
    (6) Selling technical data subject to this part in support of DoD 
contractors or in supporting of the competitive process for DoD 
contracts, provided

[[Page 604]]

such sales are limited solely to DoD contractors or potential DoD 
contractors who also are qualified U.S. contractors and provided such 
technical data are related to the purpose for which the qualified U.S. 
contractor is certified, or selling technical data to foreign 
contractors or governments overseas after receiving the required export 
license or approval by the U.S. Government.
    (e) Potential DoD contractor. An individual or organization outside 
the Department of Defense declared eligible for DoD information services 
by a sponsoring DoD activity on the basis of participation in one of the 
following programs:
    (1) The Department of the Army Qualitative Requirements Information 
Program.
    (2) The Department of the Navy Industry Cooperative Research and 
Development Program.
    (3) The Department of the Air Force Potential Contractor Program.
    (4) The DoD Scientific and Technical Program; or
    (5) Any similar program in use by other DoD Components.
    (f) Public disclosure. Making technical data available without 
restricting its dissemination or use.
    (g) Technical data with military or space application, or technical 
data. Any blueprints, drawings, plans, instructions, computer software 
and documentation, or other technical information that can be used or be 
adapted for use to design, engineer, produce, manufacture, operate, 
repair, overhaul, or reproduce any military or space equipment or 
technology concerning such equipment.
    (h) United States. For the purpose of this part, the 50 States, the 
District of Columbia, and the territories and possessions of the United 
States.



Sec. 250.4  Policy.

    (a) In accordance with 10 U.S.C. 140c, the Secretary of Defense may 
withhold from public disclosure, notwithstanding any other provision of 
law, any technical data with military or space application in the 
possession of, or under the control of, the Department of Defense, if 
such data may not be exported lawfully without an approval, 
authorization, or license under E.O. 12470 or the Arms Export Control 
Act. However, technical data may not be withheld under this section if 
regulations promulgated under either the Order or Act authorize the 
export of such data pursuant to a general, unrestricted license or 
exemption in such regulations. (Pertinent portions of such regulations 
are set forth in Sec. Sec. 250.7 and 250.8).
    (b) Because public disclosure of technical data subject to this part 
is tantamount to providing uncontrolled foreign access, withholding such 
data from public disclosure, unless approved, authorized, or licensed in 
accordance with export control laws, is necessary and in the national 
interest. Unclassified technical data that are not governed by this 
part, unless otherwise restricted, shall continue to be made available 
to the public as well as to state and local governments.
    (c) Nothwithstanding the authority provided in paragraph (a), of 
this section, it is DoD policy to provide technical data governed by 
this part to individuals and enterprises that are determined to be 
currently qualified U.S. contractors, when such data relate to a 
legitimate business purpose for which the contractor is certified. 
However, when such data are for a purpose other than to permit the 
requester to bid or perform on a contract with the Department of 
Defense, or other U.S. Government agency, and the significance of such 
data for military purposes is such that release for purposes other than 
direct support of DoD activities may jeopardize an important U.S. 
technological or operational advantage, those data shall be withheld in 
such cases.
    (d) This part may not be used by DoD Components as authority to deny 
access to technical data to the Congress, or to any Federal, State, or 
local governmental agency that requires such data for regulatory or 
other official governmental purposes. Any such dissemination will 
include a statement that the technical data are controlled by the 
Department of Defense in accordance with this part.
    (e) The authority provided herein may not be used to withhold from 
public disclosure unclassified information

[[Page 605]]

regarding DoD operations, policies, activities, or programs, including 
the costs and evaluations of performance and reliability of military and 
space equipment. When such information does contain technical data 
subject to this part, the technical data shall be excised from that 
which is disclosed publicly.
    (f) This part may not be used as a basis for the release of 
``limited rights'' or ``restricted rights'' data as defined in 32 CFR 9-
201(c) and 9-601(j) of the DoD Acquisition Regulation or that are 
authorized to be withheld from public disclosure under the Freedom of 
Information Act (FOIA).
    (g) This part may not be used to provide protection for technical 
data that should be classified in accordance with E.O. 12356 and DoD 
5200.1-R.
    (h) This part provides immediate authority to cite 5 U.S.C. 
552(b)(3) as the basis for denials under the FOIA of technical data 
currently determined to be subject to the provisions of this part.



Sec. 250.5  Procedures.

    All determinations to disseminate or withhold technical data subject 
to this part shall be consistent both with the policies set forth in 
Sec. 250.4 of this part, and with the following procedures:
    (a) Requests for technical data shall be processed in accordance 
with DoD Directive 5230.24 and DoD Instruction 5200.21. FOIA requests 
for technical data subject to this part shall be handled in accordance 
with the procedures established in DoD 5400.7-R. Such FOIA requests for 
technical data currently determined to be subject to the withholding 
authority effected by this part shall be denied under citing the third 
exemption to mandatory disclosure, and the requester shall be referred 
to the provisions of this part permitting access by qualified U.S. 
contractors.
    (b) Upon receipt of a request for technical data in the possession 
of, or under the control of, the Department of Defense, the controlling 
DoD office shall determine whether such data are governed by this part. 
The determination shall be based on the following:
    (1) The office's finding \3\ that such data would require an 
approval, authorization, or license for export under E.O. 12470 or the 
Arms Export Control Act and that such data may not be exported pursuant 
to a general, unrestricted license (15 CFR 379.3, EAR) (see Sec. 250.7) 
or exemption (22 CFR 125.11, ITAR) (see Sec. 250.8).
---------------------------------------------------------------------------

    \3\ May require consultation with the Department of State or the 
Department of Commerce, as appropriate.
---------------------------------------------------------------------------

    (2) The office's judgment that the technical data under 
consideration disclose critical technology with military or space 
application. For purposes of making this determination, the Militarily 
Critical Technologies List (MCTL) shall be used as general guidance. The 
controlling DoD office may request assistance in making such a 
determination from the Office of the Under Secretary of Defense for 
Research and Engineering (OUSDR&E) in accordance with procedures 
established by that office.
    (c) The controlling DoD office shall ensure that technical data 
determined to be governed by this part are marked in accordance with DoD 
Directive 5230.24.
    (d) The controlling DoD office shall authorize release of technical 
data governed by this part to currently qualified U.S. contractors only, 
as defined in Sec. 250.3(a) of this part, unless one of the following 
apply:
    (1) The qualification of the U.S. contractor concerned has been 
temporarily revoked in accordance with Sec. 250.5(e) of this part; or
    (2) The requested data are judged to be unrelated to the purpose for 
which the qualified U.S. contractor is certified. When release of 
technical data is denied in accordance with this section, the 
controlling DoD office shall request additional information sufficient 
to explain the intended use of the requested data and, if appropriate, 
request a new certification (see Sec. 250.3(a) above) describing the 
intended use of the requested data; or
    (3) The technical data are being requested for a purpose other than 
to permit the requester to bid or perform on a contract with the 
Department of Defense or other U.S. Government

[[Page 606]]

agency, in which case the controlling DoD office shall withhold such 
data if it has been determined by the DoD Component focal point (see 
Sec. 250.5(e)(5)) that the significance of such data for military 
purposes is such that release for purpose other than direct support of 
DoD-approved activities may jeopardize an important technological or 
operational military advantage of the United States.
    (e) Upon receipt of credible and sufficient information that a 
qualified U.S. contractor has (1) violated U.S. export control law, (2) 
violated its certification, (3) made a certification in bad faith, or 
(4) made an omission or misstatement of material fact, the DoD Component 
shall revoke temporarily the U.S. contractor's qualification. Such 
revocations having the potential for compromising a U.S. Government 
investigation may be delayed. Immediately upon such revocation, the DoD 
Component shall notify the contractor and the OUSDR&E. Such contractor 
shall be given an opportunity to respond in writing to the information 
upon which the temporary revocation is based before being disqualified. 
Any U.S. contractor whose qualification has been revoked temporarily may 
be reinstated upon presentation of sufficient information showing that 
the basis for such revocation was in error or has been remedied.
    (f) When the basis for a contractor's temporary revocation cannot be 
removed within 20 working days, the DoD Component shall recommend to the 
OUSDR&E that the contractor be disqualified.
    (g) Charges for copying, certifying, and searching records rendered 
to requesters shall be levied in accordance with DoD Instruction 7230.7. 
Normally, only one copy of the same record or document will be provided 
to each requester. Any release to qualified U.S. contractors of 
technical data controlled by this part shall be accompanied by a notice 
to the recipient as set forth in Sec. 250.9.
    (h) Qualified U.S. contractors who receive technical data governed 
by this part may disseminate such data for purposes consistent with 
their certification without prior permission of the controlling DoD 
office or when such dissemination is:
    (1) To any foreign recipient for which the data are approved, 
authorized, or licensed under E.O. 12470 or the Arms Export Control Act.
    (2) To another currently qualified U.S. contractor (as defined in 
Sec. 250.3(a) above, including existing or potential subcontractors, 
but only within the scope of the certified legitimate business purpose 
of such recipient.
    (3) To the Departments of State and Commerce, for purposes of 
applying for appropriate approvals, authorizations, or licenses for 
export under the Arms Export Control Act or E.O. 12470. Any such 
application shall include a statement that the technical data for which 
such approval, authorization, or license is sought are controlled by the 
Department of Defense in accordance with this part.
    (4) To Congress or any Federal, State, or local governmental agency 
for regulatory purposes, or otherwise as may be required by law or court 
order. Any such dissemination shall include a statement that the 
technical data are controlled by the Department of Defense in accordance 
with this part.
    (i) A qualified U.S. contractor desiring to disseminate technical 
data subject to this part in a manner not permitted expressly by the 
terms of this part shall seek authority to do so from the controlling 
DoD office.
    (j) Any requester denied technical data, or any qualified U.S. 
contractor denied permission to redisseminate such data, pursuant to 
this part, shall be provided promptly a written statement of reasons for 
that action, and advised of the right to make a written appeal of such 
determination to a specifically identified appellate authority within 
the DoD Component. Appeals of denials made under DoD 5400.7-R (reference 
(e)) shall be handled in accordance with procedures established therein. 
Other appeals shall be processed as directed by the OUSDR&E.
    (k) Denials shall cite 10 U.S.C. 140c as implemented by this part, 
and, in the case of FOIA denials made in reliance on this statutory 
authority, 5 U.S.C. 552(b)(3). Implementing procedures

[[Page 607]]

shall provide for resolution of any appeal within 20 working days.



Sec. 250.6  Responsibilities.

    (a) The Under Secretary of Defense for Research and Engineering 
(USDR&E) shall have overall responsibility for the implementation of 
this Directive and shall designate an office to:
    (1) Administer and monitor compliance with this Directive.
    (2) Receive and disseminate notifications of temporary revocation in 
accordance with Sec. 250.5(e) of this part.
    (3) Receive recommendations for disqualification made in accordance 
with Sec. 250.5(f) of this part, and act as initial disqualification 
authority.
    (4) Provide, when necessary, technical assistance to DoD Components 
in assessing the significance of the military or space application of 
technical data that may be withheld from public disclosure under this 
Directive.
    (5) Establish procedures to develop, collect, and disseminate 
certification statements and ensure their sufficiency, accuracy, and 
periodic renewal, and to make final determinations of qualification.
    (6) Ensure that the requirements of this Directive are incorporated 
into the DoD Federal Acquisition Regulation Supplement for optional 
application to contracts involving technical data governed by this 
Directive.
    (7) Develop, in conjunction with the General Counsel, Department of 
Defense, guidelines for responding to appeals.
    (8) Develop procedures to ensure that DoD Components apply 
consistent criteria in authorizing exceptions under Sec. 250.5(i) of 
this part.
    (9) Establish procedures and appropriate mechanisms for the 
certification of qualified U.S. contractors, pursuant to Sec. 
250.6(a)(5) of this part, within 60 days of the effective date of this 
Directive. During this 60-day period, requests for technical data 
governed by this Directive shall be processed in accordance with 
procedures in effect before the promulgation of this Directive.
    (10) Take such other actions that may be required to ensure 
consistent and appropriate implementation of this Directive within the 
Department of Defense.
    (b) The Under Secretary of Defense for Policy shall:
    (1) Develop and promulgate, as required, policy guidance to DoD 
Components for implementing this Directive.
    (2) Develop procedures with the Departments of State and Commerce to 
ensure referral of export cases involving technical data governed by 
this Directive to the Department of Defense.
    (c) The Assistant Secretary of Defense (Public Affairs) shall:
    (1) Monitor the implementation of provisions of this Directive that 
pertain to DoD 5400.7-R.
    (2) Provide such other assistance as may be necessary to ensure 
compliance with this Directive.
    (d) The General Counsel, Department of Defense, shall:
    (1) Assist in carrying out the provisions of this Directive by 
advising DoD Components with respect to the statutory and regulatory 
requirements governing the export of technical data.
    (2) Advise the USDR&E regarding consistent and appropriate 
implementation of this Directive.
    (e) The Heads of DoD Components shall:
    (1) As the delegated authority, have the option to redelegate the 
authority to withhold technical data in accordance with this Directive.
    (2) Disseminate and withhold from public disclosure technical data 
subject to this Directive in a manner consistent with the policies and 
procedures set forth herein.
    (3) Designate a focal point to
    (i) Ensure implementation of this Directive;
    (ii) Identify classes of technical data the release of which is 
governed by Sec. 250.5(d)(3) of this part;
    (iii) Act on appeals relating to case-by-case denials of technical 
data;
    (iv) Suspend a contractor's qualification pursuant to Sec. 250.(e) 
of this part;
    (v) Receive and evaluate requests for reinstatement of a 
contractor's qualification; and, when appropriate,
    (vi) Recommend disqualification to the OUSDR&E.
    (4) Promulgate and effect regulations to implement this Directive 
within 180 days.

[[Page 608]]

    (5) Disseminate technical data governed by this Directive in the 
manner prescribed herein, to the extent feasible, during the period 
after which certification procedures have been established under Sec. 
250.6(a)(9) of this part, but before DoD Components have issued 
implementing regulations under paragraph (e)(4) of this section. 
However, if such dissemination is not feasible, the DoD Component may 
process requests for such data in accordance with procedures in effect 
before the promulgation of this Directive.



Sec. 250.7  Pertinent portions of Export Administration Regulations (EAR).

    The following pertinent section of the EAR is provided for the 
guidance of DoD personnel in determining the releasability technical 
data under the authority of this part.

             Export Administration Regulations 15 CFR 379.3

   General License GTDA: Technical Data Available to All Destinations

    A General License designated GTDA is hereby established authorizing 
the export to all destinations of technical data described in Sec. 
379.3(a), (b), or (c), below:
    (a) Data Generally Available.
    Data that have been made generally available to the public in any 
form, including
    (1) Data released orally or visually at open conferences, lectures, 
trade show, or other media open to the public; and
    (2) Publications that may be purchased without restrictions at a 
nominal cost, or obtained without costs, or are readily available at 
libraries open to the public.
    The term ``nominal cost'' as used in Sec. 379.3(a)(2), is intended 
to reflect realistically only the cost of preparing and distributing the 
publication and not the intrinsic value of the technical data. If the 
cost is as much as to prevent the technical data from being generally 
available to the public, General License GTDA would not be applicable.
    (b) Scientific or Educational Data.
    (1) Dissemination of information not directly and significantly 
related to design, production, or utilization in industrial processes, 
including such dissemination by correspondence, attendance at, or 
participation in, meetings; or
    (2) Instruction in academic institutions and academic laboratories, 
excluding information that involves research under contract related 
directly and significantly to design, production, or utilization in 
industrial processes.
    (c) Patent Applications.
    Data contained in a patent application, prepared wholly from 
foreign-origin technical data where such application is being sent to 
the foreign inventor to be executed and returned to the United States 
for subsequent filing in the U.S. Patent and Trademark Office. (No 
validated export license from the Office of Export Administration is 
required for data contained in a patent application, or an amendment, 
modification, supplement, or division thereof for filing in a foreign 
country in accordance with the regulations of the Patent and Trademark 
Office 37 CFR part 5. See Sec. 370.10(j).)



Sec. 250.8  Pertinent portions of International Traffic in Arms 
Regulations (ITAR).

    The following pertinent section of the ITAR is provided for the 
guidance of DoD personnel in determining the releasibility of technical 
data under the authority of this part.

         International Traffic in Arms Regulations 22 CFR 125.11

                           General Exemptions

    (a) Except as provided in Sec. 26.01, district directors of customs 
and postal authorities are authorized to permit the export without a 
license of unclassified technical data as follows:
    (1) If it is in published \4\ form and subject to public 
dissemination by being:
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    \4\ The burden for obtaining appropriate U.S. Government approval 
for the publication of technical data falling within the definition in 
Sec. 125.01, including such data as may be developed under other than 
U.S. Government contract, is on the person or company seeking 
publication.
---------------------------------------------------------------------------

    (i) Sold at newsstands and bookstores;
    (ii) Available by subscription or purchase without restrictions to 
any person or available without cost to any person;
    (iii) Granted second class mailing privileges by the U.S. 
Government; or
    (iv) Freely available at public libraries.
    (2) If it has been approved for public release by any U.S. 
Government department or agency having authority to classify information 
or material under Executive Order [12356], as amended, and other 
applicable Executive Orders, and does not disclose the details of 
design, production, or manufacturing of any arms, ammunition, or 
implements of war on the U.S. Munitions List.
    (3) If the export is in furtherance of a manufacturing license or 
technical assistance agreement approved by the Department of State in 
accordance with part 124 of this chapter.

[[Page 609]]

    (4) If the export is in furtherance of a contract with an agency of 
the U.S. Government or a contract between an agency of the U.S. 
Govenment and foreign persons, provided the contract calls for the 
export of relevant unclassified technical data, and such data are being 
exported only by the prime contractor. Such data shall not disclose the 
details of development, engineering, design, production, or manufacture 
of any arms, ammunition, or implements of war on the U.S. Munitions 
List. (This exemption does not permit the prime contractor to enter into 
subsidiary technical assistance or manufacturing license agreements, or 
any arrangement which calls for the exportation of technical data 
without compliance with part 124 of this subchapter.)
    (5) If it relates to firearms not in excess of caliber .50 and 
ammunition for such weapons, except technical data containing advanced 
designs, processes, and munufacturing techniques.
    (6) If it consists of technical data, other than design, 
development, or production information relating to equipment, the export 
of which has been previously authorized to the same recipient.
    (7) If it consists of operations, maintenance and training manuals, 
and aids relating to equipment, the export of which has been authorized 
to the same recipient.\5\
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    \5\ Not applicable to technical data relating to Category VI(d) and 
Category XVI.
---------------------------------------------------------------------------

    (8) If it consists of additional copies of technical data previously 
approved for export to the same recipient; or if it consists of revised 
copies of technical data, provided it pertains to the identical 
Munitions List article, and the revisions are solely editorial and do 
not add to the content of technology previously approved for export to 
the same recipient.
    (9) If it consists solely of technical data being reexported to the 
original source of import.
    (10) If the export is by the prime contractor in direct support and 
within the technical and/or product limitations of a ``U.S. Government 
approved project'' and the prime contractor so certifies. The Office of 
Munitions Control, Department of State, will verify, upon request, those 
projects which are ``U.S. Government approved,'' and accord an exemption 
to the applicant who applies for such verification and exemption, where 
appropriate, under this subparagraph.\6\
---------------------------------------------------------------------------

    \6\ Classified information may also be transmitted in direct support 
of and within the technical and/or product limitation of such verified 
U.S. Government approved projects without prior Department of State 
approval provided the U.S. party so certifies and complies with the 
requirements of the Department of Defense Industrial Security Manual 
relating to the transmission of such classified information (and any 
other rquirements of cognizant U.S. Government departments or agencies).
---------------------------------------------------------------------------

    (11) If the export is solely for the use of American citizen 
employees of U.S. firms provided the U.S. firm certifies its overseas 
employee is a U.S. citizen and has a ``need to know.'' \7\
---------------------------------------------------------------------------

    \7\ Classified information may also be exported to such certified 
American citizen employees without prior Department of State approval 
provided the U.S. party complies with the requirements of the Department 
of Defense Industrial Security Manual relating to the transmission of 
such classified information (and any other requirements of cognizant 
U.S. Government departments or agencies). Such technical data or 
information (classified or unclassified) shall not be released by oral, 
visual, or documentary means to any foreign person.
---------------------------------------------------------------------------

    (12) If the export is directly related to classified information, 
the export of which has been previously authorized to the same 
recipient, and does not disclose the details of design, production, or 
manufacture of any arms, ammunition, or implements of war on the U.S. 
Munitions List.
    (b) Plant visits. Except as restricted by the provisions of Sec. 
126.01 of this subchapter:
    (1) No license shall be required for the oral and visual disclosure 
of unclassified technical data during the course of a plant visit by 
foreign nationals provided the data [are] disclosed in connection with a 
classified plant visit or the visit has the approval of a U.S. 
Government agency having authority for the classification of information 
or material under Executive Order [12356], as amended, and other 
applicable Executive Orders, and the requirements of section V, 
paragraph [41(d)] of the Industrial Security Manual are met.
    (2) No license shall be required for the documentary disclosure of 
unclassified technical data during the course of a plant visit by 
foreign nationals provided the document does not contain technical data 
as defined in Sec. 125.01 in excess of that released orally or visually 
during the visit, is within the terms of the approved visit request, and 
the person in the United States assures that the technical data will not 
be used, adopted for use, or disclosed to others for the purpose of 
manufacture or production without the prior approval of the Department 
of State in accordance with part 124 of this subchapter.
    (3) No Department of State approval is required for the disclosure 
of oral and visual classified information during the course of a plant 
visit by foreign nationals provided the visit has been approved by the 
cognizant U.S. Defense agency and the requirements of

[[Page 610]]

section V, paragraph [41(d)] of the Defense Industrial Security Manual 
are met.



Sec. 250.9  Notice to accompany the dissemination of export-controlled 
technical data.

    (a) Export of information contained herein, which includes, in some 
circumstances, release to foreign nationals within the United States, 
without first obtaining approval or license from the Department of State 
for items controlled by the International Traffic in Arms Regulations 
(ITAR), or the Department of Commerce for items controlled by the Export 
Administration Regulations (EAR), may constitute a violation of law.
    (b) Under 22 U.S.C. 2778 the penalty for unlawful export of items or 
information controlled under the ITAR is up to 2 years imprisonment, or 
a fine of $100,000, or both. Under 50 U.S.C., appendix 2410, the penalty 
for unlawful export of items or information controlled under the EAR is 
a fine of up to $1,000,000, or five times the value of the exports, 
whichever is greater; or for an individual, imprisonment of up to 10 
years, or a fine of up to $250,000, or both.
    (c) In accordance with your certification that establishes you as a 
``qualified U.S. contractor,'' unauthorized dissemination of this 
information is prohibited and may result in disqualification as a 
qualified U.S. contractor, and may be considered in determining your 
eligibility for future contracts with the Department of Defense.
    (d) The U.S. Government assumes no liability for direct patent 
infringement, or contributory patent infringement or misuse of technical 
data.
    (e) The U.S. Government does not warrant the adequacy, accuracy, 
currency, or completeness of the technical data.
    (f) The U.S. Government assumes no liability for loss, damage, or 
injury resulting from manufacture or use for any purpose of any product, 
article, system, or material involving reliance upon any or all 
technical data furnished in response to the request for technical data.
    (g) If the technical data furnished by the Government will be used 
for commercial manufacturing or other profit potential, a license for 
such use may be necessary. Any payments made in support of the request 
for data do not include or involve any license rights.
    (h) A copy of this notice shall be provided with any partial or 
complete reproduction of these data that are provided to qualified U.S. 
contractors.



PART 252_DEPARTMENT OF DEFENSE OFFSHORE MILITARY ACTIVITIES PROGRAM
--Table of Contents




Sec.
252.1 Reissuance and purpose.
252.2 Applicability and scope.
252.3 Definitions.
252.4 Policy.
252.5 Responsibilities.

    Authority: 5 U.S.C. 301.

    Source: 52 FR 39222, Oct. 21, 1987, unless otherwise noted.



Sec. 252.1  Reissuance and purpose.

    This part reissues 32 CFR part 252 to update policies and procedures 
for the use of offshore areas by the Department of Defense. It shall 
serve as the basis for a comprehensive Offshore Military Activities 
Program.



Sec. 252.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments (including their National Guard and Reserve 
components), the Organization of the Joint Chiefs of Staff (OJCS), and 
the Defense Agencies (hereafter referred to collectively as ``DoD 
Components'').
    (b) Concerns the use of offshore areas for military purposes. It 
does not limit the responsibilities of the Secretary of the Navy 
assigned under 33 U.S.C. 1101 et seq.



Sec. 252.3  Definitions.

    Offshore areas. The submerged land areas defined in 43 U.S.C. 1301 
et seq. and 43 U.S.C. 1331 et seq. and the adjacent waters affected by 
the use of those submerged lands.
    Offshore Military Activities Program. The program established to 
implement DoD policies and procedures for those activities, operations, 
and installations that require an offshore environment and that may 
impact on offshore areas.

[[Page 611]]

    Outer Continental Shelf. All submerged lands lying seaward and 
outside of the area of lands beneath navigable waters as defined in 
section 2 of 43 U.S.C. 1301 et seq., and of which the subsoil and seabed 
appertain to the United States and are subject to its jurisdiction and 
control.
    State-owned Offshore Submerged Lands. Coastal portions of lands 
beneath navigable waters, as defined in section 2 of the Submerged Lands 
Act.



Sec. 252.4  Policy.

    (a) lt is DoD policy to support the principle that lands composing 
the Outer Continental Shelf and state-owned offshore areas shall be used 
in the best interest of the United States. Therefore, it is DoD policy 
for the use of offshore areas to be shared with nonmilitary interests 
whenever they can be accommodated.
    (b) The Secretaries of Defense and the Interior have agreed on 
procedures for resolving conflicts over joint use of offshore areas for 
military and mineral exploration or developmental purposes. In carrying 
out negotiations with elements of the Department of the Interior (DoI), 
the Department of Defense shall be guided by this agreement when 
appropriate.
    (c) If a coastal state determines that the mineral potential of off-
shore areas being used or proposed to be used for military purposes must 
be explored or developed, DoD shall endeavor to accommodate joint 
military and commercial use of those areas. If compatible joint use is 
not economically or militarily feasible, DoD shall seek agreement with 
the coastal state to exclude conflict areas from its leasing program.



Sec. 252.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Production and Logistics) 
(ASD(P&L)) shall maintain a comprehensive program for the military use 
of the offshore environment and provide related direction and policy to 
DoD Components.
    (b) The Secretary of the Army shall provide notices to the ASD(A&L), 
to affected military installations and activities, and to the Director 
of the Defense Mapping Agency Hydrographic/Topographic Center of 
potential obstructions and hazards to navigation as stated in the Rivers 
and Harbors Appropriation Act, of proposed permits for obstructions to 
be located on the Outer Continental Shelf under 43 U.S.C. 1331 et seq., 
as amended, and of proposed permits for artificial reefs under the 
National Fishing Enhancement Act of 1984 to ensure compatibility with 
the Offshore Military Activities Program.
    (c) The Secretary of the Navy shall:
    (1) Act as DoD Executive Agent for outer continental shelf matters 
and carry out responsibilities assigned to the Executive Agent in the 
Agreement.
    (2) Conduct continuing liaison with DoI, appropriate coastal states, 
and the ASD(P&L) to ensure compatibility between the DoD Offshore 
Military Activities Program and the related plans and programs of DoI 
and coastal states.
    (3) lnform concerned DoD Components of new developments in the 
DOI's, states', and industry's mineral leasing plans that may affect 
present or potential military interests in offshore areas.
    (4) Represent the Department of Defense on the Secretary of the 
Interior's Outer Continental Shelf Advisory Board.
    (d) The Secretary of the Air Force shall, for those offshore areas 
under his control, conduct continuing liaison with the DoI and coastal 
states and enter into agreements necessary to ensure compatibility 
between military activities and relevant plans and programs of the DoI 
and coastal states.
    (e) Heads of DoD Components shall:
    (1) Review proposed DoI's and states' mineral leasing plans and 
inform the Executive Agent of proposed activities that could be 
incompatible with military missions. When joint use is feasible, the 
Heads shall recommend conditions and stipulations that should be imposed 
in leases to ensure the integrity of military missions and otherwise 
protect the interests of the United States against claims arising out of 
damage to property or personal injury.
    (2) Establish and maintain lines of communication and coordination 
to ensure that the ASD(P&L) and the Executive Agent are fully aware of 
plans and programs involving offshore areas.

[[Page 612]]

    (3) Review notices referred to in Sec. 252.5(b) and notify the Army 
Chief of Engineers if proposed actions are incompatible with offshore 
military activities.
    (4) Inform the Army Chief of Engineers and the Executive Agent of 
any significant change in the status of offshore ranges, restricted 
areas, or operating areas.
    (5) Comply with the provisions of the Coastal Zone Management Act.
    (6) Conduct other activities related to offshore areas as requested 
by the ASD(A&L).



PART 253_ASSIGNMENT OF AMERICAN NATIONAL RED CROSS AND UNITED SERVICE 

ORGANIZATIONS, INC., EMPLOYEES TO DUTY WITH THE MILITARY SERVICES
--Table of Contents




Sec.
253.1 Reissuance and purpose.
253.2 Applicability and scope.
253.3 Definition.
253.4 Policy.
253.5 Responsibilities.
253.6 Procedures.

    Authority: Pub. L. 83-131, 5 U.S.C. 301.

    Source: 48 FR 35644, Aug. 5, 1983, unless otherwise noted.



Sec. 253.1  Reissuance and purpose.

    This rule reissues this part to update policy and procedures 
governing the investigation of American National Red Cross (hereafter 
``Red Cross'') employees and United Service Organizations, Inc. (USO), 
staff for the purpose of determining the security acceptability of such 
personnel for assignment to duty with the Military Services.



Sec. 253.2  Applicability and scope.

    (a) This rule applies to the Office of the Secretary of Defense, the 
Military Departments, the Unified and Specified Commands, and the 
Defense Investigative Service (hereafter referred to as ``DoD 
Components''). The term ``Military Services,'' as used herein, refers to 
the Army, the Navy, the Air Force, and the Marine Corps.
    (b) This rule does not apply to U.S. citizens or foreign nationals 
who are available locally at overseas locations for temporary or part-
time employment with the Red Cross or the USO. Policy and procedures 
governing investigation and security acceptability of locally hired 
employees shall be determined by the Military Department concerned.



Sec. 253.3  Definition.

    Employee. Any full-time, salaried individual serving with or 
employed by the Red Cross or the USO who is subject to assignment for 
overseas duty with the Military Services.



Sec. 253.4  Policy.

    (a) It is the policy of the Department of Defense that an employee 
shall be accepted for assignment to duty with the Military Services 
overseas only after it first has been determined, based upon an 
appropriate personnel security investigation, that such acceptance for 
assignment is clearly consistent with the national interest.
    (b) The standard and criteria for determining the security 
acceptability of an employee for assignment or continuation of 
assignment with the Military Services overseas shall be identical to 
those established for making security clearance determinations for 
personnel employed in private industry under Sec. Sec. 155.4 and 155.5 
of this title.



Sec. 253.5  Responsibilities.

    (a) The Deputy Under Secretary of Defense for Policy, or designee, 
the Director, Security Plans and Programs, shall serve as the primary 
contact between the Department of Defense and the Red Cross and USO for 
all matters relating to the policy and procedures prescribed herein.
    (b) Heads of DoD Components shall comply with the provisions of this 
rule.



Sec. 253.6  Procedures.

    (a) Employees who are U.S. citizens shall have been the subject of a 
national agency check (NAC), completed with favorable results, before 
being nominated for assignment with the Military Services overseas.
    (b) Employees who are not U.S. citizens shall have been the subject 
of a background investigation (BI), completed with favorable results, 
before

[[Page 613]]

being nominated for assignment with the Military Services overseas.
    (c) An employee will not be assigned for duty with the Military 
Services overseas or continued in such an assignment when it has been 
determined that assignment or continuation of assignment is not clearly 
consistent with the national interest.
    (d) Completed security forms (DD Form 398, Personnel Security 
Questionnaire (BI/SBI), or 398-2, Personnel Security Questionnaire 
(National Agency Check)) shall be forwarded to the Defense Industrial 
Security Clearance Office (DISCO), Defense Investigative Service, for 
initiation of the NAC or BI, as appropriate.
    (e) Upon completion of the appropriate investigation, the results 
shall be returned to the DISCO where a determination shall be made 
concerning security acceptability of the employee. If the determination 
is favorable, the DISCO shall provide a statement to that effect to the 
Red Cross or the USO. If the DISCO is unable to make a favorable 
security acceptability determination, the procedures described in 
paragraph (f)(3), of this section, shall apply.
    (f) Whenever any DoD Component or the Red Cross or the USO receives 
information indicating that an employee's assignment or continuation of 
assignment with the Military Services overseas may not clearly be 
consistent with the national interest, the information shall be 
furnished to the DISCO for appropriate review. In such cases, the 
following actions shall be taken:
    (1) The DISCO shall arrange for the conduct of any investigation 
warranted to resolve the adverse or questionable information.
    (2) In cases arising after the initial security acceptability 
determination has been made, the DISCO shall review the information or 
report of investigation to determine whether the security acceptability 
determination is to continue in effect. If such adjudication is 
favorable, no further action is required. The Red Cross or the USO will 
not be notified in such cases in order to preclude the possibility of 
any adverse inference being drawn.
    (3) If, after reviewing the information or report of investigation, 
the DISCO is unable to make a favorable security acceptability 
determination, the case shall be referred for further processing in 
accordance with part 155 of this title.



PART 256_AIR INSTALLATIONS COMPATIBLE USE ZONES--Table of Contents




Sec.
256.1 Purpose.
256.2 Applicability.
256.3 Criteria.
256.4 Policy.
256.5 The air installation compatible use program.
256.6 Runway classification by aircraft type.
256.7 Accident potential zone guidelines.
256.8 Land use compatibility guidelines for accident potential.
256.9 Real estate interests to be considered for clear zones and 
          accident potential zone.
256.10 Air installations compatible use zone noise descriptors.
256.11 Effective date and implementation.

    Authority: National Security Act of 1947, as amended, 61 Stat. 495.

    Source: 42 FR 773, Jan. 4, 1977, unless otherwise noted.



Sec. 256.1  Purpose.

    This part:
    (a) Sets forth Department of Defense policy on achieving compatible 
use of public and private lands in the vicinity of military airfields;
    (b) Defines (1) required restrictions on the uses and heights of 
natural and man-made objects in the vicinity of air installations to 
provide for safety of flight and to assure that people and facilities 
are not concentrated in areas susceptible to aircraft accidents; and
    (2) Desirable restrictions on land use to assure its compatibility 
with the characteristics, including noise, of air installations 
operations;
    (c) Describes the procedures by which Air Installations Compatible 
Use Zones (AICUZ) may be defined; and
    (d) Provides policy on the extent of Government interest in real 
property within these zones which may be retained or acquired to protect 
the operational capability of active military airfields (subject in each 
case to the availability of required authorizations and appropriations).

[[Page 614]]



Sec. 256.2  Applicability.

    This part applies to air installations of the Military Departments 
located within the United States, its territories, trusts, and 
possessions.



Sec. 256.3  Criteria.

    (a) General. The Air Installations Compatible Use Zone for each 
military air installation shall consist of (1) land areas upon which 
certain uses may obstruct the airspace or otherwise be hazardous to 
aircraft operations, and (2) land areas which are exposed to the health, 
safety or welfare hazards of aircraft operations.
    (b) Height of obstructions. The land area and height standards 
defined in AFM 86-8,\1\ NavFac P-272 and P-80, \1\ and TM 5-803-4 \1\ 
will be used for purposes of height restriction criteria.
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    \1\ Filed as part of original. Copies available in the Office of the 
Assistant Secretary of Defense (Installations and Logistics)--ID, 
Washington, DC 20301.
---------------------------------------------------------------------------

    (c) Accident potential--(1) General. (i) Areas immediately beyond 
the ends of runways and along primary flight paths are subject to more 
aircraft accidents than other areas. For this reason, these areas should 
remain undeveloped, or if developed should be only sparsely developed in 
order to limit, as much as possible, the adverse effects of a possible 
aircraft accident.
    (ii) DoD fixed wing runways are separated into two types for the 
purpose of defining accident potential areas. Class A runways are those 
restricted to light aircraft (See Sec. 256.6) and which do not have the 
potential for development for heavy or high performance aircraft use or 
for which no foreseeable requirement for such use exists. Typically 
these runways have less than 10% of their operations involving Class B 
aircraft (Sec. 256.6) and are less than 8000 feet long. Class B runways 
are all other fixed wing runways.
    (iii) The following descriptions of Accident Potential Zones are 
guidelines only. Their strict application would result in increasing the 
safety of the general public but would not provide complete protection 
against the effects of aircraft accidents. Such a degree of protection 
is probably impossible to achieve. Local situations may differ 
significantly from the assumptions and data upon which these guidelines 
are based and require individual study. Where it is desirable to 
restrict the density of development of an area, it is not usually 
possible to state that one density is safe and another is not. Safety is 
a relative term and the objective should be the realization of the 
greatest degree of safety that can be reasonably attained.
    (2) Accident potential and clear zones (See Sec. 256.7). (i) The 
area immediately beyond the end of a runway is the ``Clear Zone'', an 
area which possesses a high potential for accidents, and has 
traditionally been acquired by the Government in fee and kept clear of 
obstructions to flight.
    (ii) Accident Potential Zone I (APZ I) is the area beyond the clear 
zone which possesses a significant potential for accidents.
    (iii) Accident Potential Zone II (APZ II) is an area beyond APZ I 
having a measurable potential for accidents.
    (iv) Modifications to APZs I and II will be considered if:
    (A) The runway is infrequently used.
    (B) The prevailing wind conditions are such that a large percentage 
(i.e., over 80 percent) of the operations are in one direction.
    (C) Most aircraft do not overfly the APZs as defined herein during 
normal flight operations (modifications may be made to alter these zones 
and adjust them to conform to the line of flight).
    (D) Local accident history indicates consideration of different 
areas.
    (E) Other unusual conditions exist.
    (v) The takeoff safety zone for VFR rotary-wing facilities will be 
used for the clear zone; the remainder of the approach-departure zone 
will be used as APZ I.
    (vi) Land use compatibility with clear zones and APZs is shown in 
Sec. 256.8.
    (d) Noise--(1) General. Noise exposure is described in various ways. 
In 1964, the Department of Defense began using the Composite Noise 
Rating (CNR) system to describe aircraft noise. Several years ago the 
Noise Exposure Forecast (NEF) system began to replace CNR. In August 
1974, the Environment Protection Agency notified all Federal agencies of 
intent to implement the Day-

[[Page 615]]

Night Average Sound Level (Ldn) noise descriptor, and this was 
subsequently adopted by the DoD. This Ldn system will be used for air 
installations. Where AICUZ studies have been published using the CNR of 
NEF systems or where studies have progressed to the point that a change 
in the descriptor system is impractical or uneconomical, such studies 
may be published and continued in use. However, in such cases, data 
necessary for conversion to Ldn should be collected and studies should 
be revised as soon as time and budgetary considerations permit. However, 
if State or local laws require some other noise descriptor, it may be 
used in lieu of Ldn.
    (2) Noise Zones. (i) As a minimum, contours for Ldn 65, 70, 75 and 
80 shall be plotted on maps as part of AICUZ studies.
    (ii) See Sec. 256.10 for a further discussion of Ldn use and 
conversion to Ldn from previously used systems.



Sec. 256.4  Policy.

    (a) General. As a first priority step, all reasonable, economical, 
and practical measures will be taken to reduce and/or control the 
generation of noise from flying and flying related activities. Typical 
measures normally include siting of engine test and runup facilities in 
remote areas if practical, provision of sound suppression equipment 
where necessary, and may include additional measures such as adjustment 
of traffic patterns to avoid built-up areas where such can be 
accomplished with safety and without significant impairment of 
operational effectiveness. After all reasonable noise source control 
measures have been taken, there will usually remain significant land 
areas wherein the total noise exposure is such as to be incompatible 
with certain uses.
    (b) Compatible use land--(1) General. (i) DoD policy is to work 
toward achieving compatibility between air installations and neighboring 
civilian communities by means of a compatible land use planning and 
control process conducted by the local community.
    (ii) Land use compatibility guidelines will be specified for each 
Clear Zone, Accident Potential Zone, Noise Zone and combination of these 
as appropriate.
    (iii) The method of control and regulation of land usage within each 
zone will vary according to local conditions. In all instances the 
primary objective will be to identify planning areas and reasonable land 
use guidelines which will be recommended to appropriate agencies who are 
in control of the planning functions for the affected areas.
    (2) Property rights acquisition--(i) General. While noise generated 
by aircraft at military air installations should be an integral element 
of land use compatibility efforts, the acquisition of property rights on 
the basis of noise by the Department of Defense may not be in the long 
term best interests of the United States. Therefore, while the complete 
requirement for individual installations should be defined prior to any 
programming actions, acquisition of interests should be programmed in 
accordance with the following priorities.
    (ii) Priorities. (A) The first priority is the acquisition in fee 
and/or appropriate restrictive easements of lands within the clear zones 
whenever practicable.
    (B) Outside the clear zone, program for the acquisition of 
interests, first in Accident Potential Zones and secondly in high noise 
areas only when all possibilities of achieving compatible use zoning, or 
similar protection, have been exhausted and the operational integrity of 
the air installation is manifestly threatened. If programming actions 
are considered necessary, complete records of all discussions, 
negotiations, testimony, etc., with or before all local officials, 
boards, etc., must be maintained. This will ensure that documentation is 
available to indicate that all reasonable and prudent efforts were made 
to preclude incompatible land use through cooperation with local 
governmental officials and that all recourse to such action has been 
exhausted. Such records shall accompany programming actions and/or 
apportionment requests for items programmed prior to the date of this 
part. In addition, a complete economic analysis and assessment of the 
future of the installation must be included.

[[Page 616]]

    (1) Costs of establishing and maintaining compatible use zones must 
be weighed against other available options, such as changing the 
installation's mission and relocating the flying activities, closing the 
installation, or such other courses of action as may be available. In 
performing analyses of this type, exceptional care must be exercised to 
assure that a decision to change or relocate a mission is fully 
justified and that all aspects of the situation have been thoroughly 
considered.
    (2) When, as a result of such analysis, it is determined that 
relocation or abandonment of a mission will be required, then no new 
construction shall be undertaken in support of such activities except as 
is absolutely necessary to maintain safety and operational readiness 
pending accomplishment of the changes required.
    (iii) Guidelines. This part shall not be used as sole justification 
for either the acquisition or the retention of owned interests beyond 
the minimum required to protect the Government.
    (A) Necessary rights to land within the defined compatible use area 
may be obtained by purchase, exchange, or donation, in accordance with 
all applicable laws and regulations.
    (B) If fee title is currently held or subsequently acquired in an 
area where compatible uses could be developed and no requirement for a 
fee interest in the land exists except to prevent incompatible use, 
disposal actions shall normally be instituted. Only those rights and 
interests necessary to establish and maintain compatible uses shall be 
retained. Where proceeds from disposal would be inconsequential, 
consideration may be given to retaining title.
    (C) If the cost of acquiring a required interest approaches closely 
the cost of fee title, consideration shall be given to whether 
acquisition of fee title would be to the advantage of the Government.
    (c) Rights and interests which may be obtained. When it is 
determined to be necessary for the Federal Government to acquire 
interests in land, a careful assessment of the type of interest to be 
acquired is mandatory. Sec. 256.9 contains a listing of possible 
interests which should be examined for applicability.
    (d) Environmental impact statements. (1) Any actions taken with 
respect to safety of flight, accident hazard, or noise which involve 
acquisition of interests in land must be examined to determine the 
necessity of preparing an environmental impact statement in accordance 
with DoD Directive 6050.1, ``Environmental Considerations in DoD 
Actions,'' March 19, 1974 (32 CFR part 214).
    (2) All such environmental impact statements must be forwarded to 
appropriate Federal and local agencies for review in accordance with DoD 
Directive 6050.1 (32 CFR part 214).
    (3) Coordination with local agencies will be in accordance with OMB 
Circular A-95.



Sec. 256.5  The air installation compatible use program.

    (a) The Secretaries of the Military Departments will develop, 
implement and maintain a program to investigate and study all air 
installations in necessary order of priority to develop an Air 
Installation Compatible Use Zone (AICUZ) program for each air 
installation consistent wth Sec. 256.4. AICUZ studies which contain an 
analysis of land use compatibility problems and potential solutions 
shall be developed and updated as necessary. As a minimum, each Study 
shall include the following:
    (1) Determination by detailed study of flight operations, actual 
noise and safety surveys if necessary, and best available projections of 
future flying activities, desirable restrictions on land use due to 
noise characteristics and safety of flight;
    (2) Identification of present incompatible land uses;
    (3) Identification of land that if inappropriately developed would 
be incompatible;
    (4) Indication of types of desirable development for various land 
tracts;
    (5) Land value estimates for the zones in question.
    (6) Review of the airfield master plans to ensure that existing and 
future facilities siting is consistent with the policies in this part.
    (7) Full consideration of joint use of air installations by 
activities of separate Military Departments whenever such use will 
result in maintaining

[[Page 617]]

operational capabilities while reducing noise, real estate and 
construction requirements.
    (8) Recommendations for work with local zoning boards, necessary 
minimum programs of acquisition, relocations, or such other actions as 
are indicated by the results of the Study.
    (b) Procedures. In developing AICUZ Studies the Secretaries of 
Military Departments shall:
    (1) Follow the review and comment procedures established under OMB 
Circular A-95;
    (2) Ensure that appropriate environmental factors are considered; 
and
    (3) Ensure that other local, State or Federal agencies engaged in 
land use planning or land regulation for a particular area have an 
opportunity to review and comment upon any proposed plan or significant 
modification thereof.
    (c) Coordination with State and local governments. Secretaries of 
the Military Departments shall develop procedures for coordinating AICUZ 
Studies with the land use planning and regulatory agencies in the area. 
Developing compatible land use plans may require working with local 
governments, local planning commissions, special purpose districts, 
regional planning agencies, state agencies, state legislatures, as well 
as the other Federal agencies. Technical assistance to local, regional, 
and state agencies to assist them in developing their land use planning 
and regulatory processes, to explain an AICUZ Study and its 
implications, and generally to work toward compatible planning and 
development in the vicinity of military airfields, should be provided.
    (d) Property rights acquisition. The AICUZ Study shall serve as the 
basis for new land acquisitions, property disposal, and other proposed 
changes in Military Departments real property holdings in the vicinity 
of military airfields where applicable.
    (e) Required approvals. Based on the results of the AICUZ Studies, 
each Military Department will prepare recommendations for individual 
installations AICUZ programs for approval as follows:
    (1) The Secretaries of the Military Departments or their designated 
representatives will review and approve the AICUZ Studies establishing 
the individual air installation AICUZ program.
    (2) When relocation or abandonment of a mission or an installation 
is apparently required, the Secretaries of the Military Departments will 
submit the proposed plan for the installation, with appropriate 
recommendations, to the Secretary of Defense for approval.
    (3) A time-phased fiscal year plan for implementation of the AICUZ 
program in priority order, consistent with budgetary considerations, 
will be developed for approval by the Secretaries of the Military 
Departments, or their designated representatives. These plans will serve 
as the basis for all AICUZ actions at the individual installations.
    (f) Coincident actions. The Secretaries of the Military Departments 
will also take action to assure in accordance with Sec. 256.4 (a) and 
(b) that:
    (1) As the first priority action in developing an AICUZ program, 
full attention is given to safety and noise problems.
    (2) In all planning, acquisition and siting of noise generating 
items, such as engine test stands, full advantage is taken of available 
alleviating measures, such as remote sites or sound suppression 
equipment.
    (3) The noise exposure of on-installation facilities and personnel 
are considered together with that off the installation.
    (4) There is development or continuation with renewed emphasis, of 
programs to inform local governments, citizens groups, and the general 
public of the requirements of flying activities, the reasons therefore, 
the efforts which may have been made or may be taken to reduce noise 
exposure, and similar matters which will promote and develop a public 
awareness of the complexities of air installation operations, the 
problems associated therewith, and the willingness of the Department of 
Defense to take all measures possible to alleviate undesirable external 
effects.
    (g) Responsibilities for the acquisition, management and disposal of 
real property are defined in DoD Directive 4165.6, ``Real Property; 
Acquisition,

[[Page 618]]

Management and Disposal,'' September 15, 1955 (20 FR 7113).
    (h) The Deputy Assistant Secretary of Defense (Installations and 
Housing) will examine the program developed pursuant to this part, and 
from time to time review the progress thereunder to assure conformance 
with policy.



Sec. 256.6  Runway classification by aircraft type.

                             Class A runways

S-2, VC-6, C-1, C-2, TC-4C, U-10, U-11, LU-16, TU-16, HU-16, C-7, C-8, 
C-12, C-47, C-117, U-21, QU-22, E-1, E-2, O-1, U-1, U-3, U-6, U-8, U-9, 
O-2, OV-1, OV-10, T-28, T-34, T-41, T-42.

                             Class B runways

A-1, A-3, A-4, A-5, A-6, F-106, F-5, F-15, F-18, S-3, C-121, EC-121, WC-
121, C-123, C-130, A-7, A-38, AV-8, P-2, P-3, T-29, T-33, T-37, T-39, T-
1, HC-130B, C-131, C-140, C-5A, KC-97, F-9, F-14, F-4, F-8, F-111, T-2, 
T-38, B-52, B-57, B-57F, C-124, EC-130E, HC-130, C-135, VC-137, YF-12, 
SR-71, F-100, F-101, F-102, B-66, C-9, C-54, C-97, C-118, C-141, KC-135, 
EC-135, RC-135, U-2, F-104, F-105, C-119.

[42 FR 13022, Mar. 8, 1977]



Sec. 256.7  Accident potential zone guidelines.
[GRAPHIC] [TIFF OMITTED] TC21OC91.032



Sec. 256.8  Land use compatibility guidelines for accident potential.

                 Zones and Footnotes--Land Use Category
                     [See footnotes at end of table]
------------------------------------------------------------------------
                                             Compatibility \1\
                                  --------------------------------------
                                    Clear zone     APZ I        APZ II
------------------------------------------------------------------------
Residential:
Single family....................  No.........  No.........  Yes. \2\
2 to 4 family....................  ......do...  ......do...  No.
Multifamily dwellings............  ......do...  ......do...   Do.
Group quarters...................  ......do...  ......do...   Do.
Residential hotels...............  ......do...  ......do...   Do.
Mobile home parks or courts......  ......do...  ......do...   Do.
Other residential................  ......do...  ......do...   Do.
Industrial manufacturing: \3\
Food and kindred products........  ......do...  ......do...  Yes.
Textile mill products............  ......do...  ......do...   Do.

[[Page 619]]

 
Apparel..........................  ......do...  ......do...  No.
Lumber and wood products.........  ......do...  Yes........   Do.
Furniture and fixtures...........  ......do...  ......do...   Do.
Paper and allied products........  ......do...  ......do...   Do.
Printing, publishing.............  ......do...  ......do...   Do.
Chemicals and allied products....  ......do...  No.........  No.
Petroleum refining and related     ......do...  ......do...   Do.
 industries.
Rubber and miscellaneous plastic   ......do...  ......do...   Do.
 goods.
Stone, clay, and glass products..  ......do...  Yes........  Yes.
Primary metal industries.........  ......do...  ......do...   Do.
Fabricated metal products........  ......do...  ......do...   Do.
Professional, scientific and       ......do...  No.........  No.
 controlling instruments.
Miscellaneous manufacturing......  ......do...  Yes........  Yes.
Transportation, communications
 and utilities: \4\
Railroad, rapid rail transit       Yes........  Yes \4\....  Yes.
 (ongrade).
Highway and street ROW...........  ......do...  Yes........   Do.
Auto parking.....................  No.........  ......do...   Do.
Communication....................  Yes........  ......do...   Do.
Utilities........................  ......do...  Yes \4\....   Do.
Other transportation,              ......do...  Yes........   Do.
 communications and utilities.
Commercial/retail trade:
Wholesale trade..................  No.........  ......do...   Do.
Building materials--retail.......  ......do...  ......do...   Do.
General merchandise--retail......  ......do...  No.........   Do.
Food--retail.....................  ......do...  ......do...   Do.
Automotive, marine, aviation--     ......do...  Yes........   Do.
 retail.
Apparel and accessories--retail..  ......do...  No.........   Do.
Furniture, homefurnishing--retail  ......do...  ......do...   Do.
Eating and drinking places.......  ......do...  ......do...  No.
Other retail trade...............  ......do...  ......do...  Yes.
Personal and business services:
 \5\
Finance, insurance and real        ......do...  ......do...   Do.
 estate.
Personal services................  ......do...  ......do...   Do.
Business services................  ......do...  ......do...   Do.
Repair services..................  ......do...  Yes........   Do.
Professional services............  ......do...  No.........   Do.
Contract construction services...  ......do...  Yes........   Do.
Indoor recreation services.......  ......do...  No.........   Do.
Other services...................  ......do...  ......do...   Do.
Public and quasi-public services:
Government service...............  ......do...  ......do...  Yes.\5\
Educational services.............  No.........  No.........  No.
Cultural activities..............  ......do...  ......do...   Do.
Medical and other health services  ......do...  ......do...   Do.
Cemeteries.......................  ......do...  Yes \6\....  Yes. \6\
Nonprofit organization including   ......do...  No.........  No.
 churches.
Other public and quasi-public      ......do...  ......do...  Yes.
 services.
Outdoor recreation:
Playground's neighboring parks...  ......do...  ......do...  Yes.
Community and regional parks.....  ......do...  Yes \7\....  Yes. \7\
Nature exhibits..................  ......do...  Yes........  Yes.
Spectator sports including arenas  ......do...  No.........  No.
Golf course, \8\ riding stables    ......do...  Yes........  Yes.
 \9\.
Water based recreational areas...  ......do...  ......do...   Do.
Resort and group camps...........  ......do...  No.........  No.
Entertainment assembly...........  ......do...  ......do...   Do.
Other outdoor recreation.........  ......do...  Yes \7\....  Yes.
Resource production and
 extraction and open land:
Agriculture \10\.................  Yes........  Yes........   Do.
Livestock farming, animal          No.........  ......do...   Do.
 breeding \11\.
Forestry activities \12\.........  No \13\....  Yes........   Do.
Fishing activities and related     No \15\....  Yes \14\...   Do.
 services \14\.
Mining activities................  No.........  Yes........   Do.
Permanent open space.............  Yes........  ......do...   Do.
Water areas \14\.................  ......do...  ......do...   Do.
------------------------------------------------------------------------
Footnotes.
\1\ A ``Yes'' or ``No'' designation for compatible land use is to be
  used only for gross comparison. Within each, uses exist where further
  definition may be needed as to whether it is clear or normally
  acceptable/unacceptable owing to variations in densities of people and
  structures.
\2\ Suggested maximum density 1-2 DU/AC, possibly increased under a
  planned unit development where maximum lot covered less than 20
  percent.
\3\ Tactics to be considered: Labor intensity, structural coverage,
  explosive characteristics, air pollution.
\4\ No passenger terminals and no major above ground transmission lines
  in APZ I.
\5\ Low intensity office uses only. Meeting places, auditoriums, etc.,
  not recommended.
\6\ Excludes chapels.
\7\ Facilities must be low intensity.
\8\ Clubhouse not recommended.
\9\ Concentrated rings with large classes not recommended.
\10\ Includes livestock grazing but excludes feedlots and intensive
  animal husbandry.
\11\ Includes feedlots and intensive animal husbandry.

[[Page 620]]

 
\12\ No structures (except airfield lighting), buildings or above ground
  utility/communication lines should be located in the clear zone. For
  further runway safety clearance limitations pertaining to the clear
  zone see AFM 86-6 TM 5-803-4 and NAVFAC P-80.\2\
\13\ Lumber and timber products removed due to establishment, expansion
  or maintenance of clear zones will be disposed of in accordance with
  DoD Instruction 4170.7, ``Natural Resources--Forest Management,'' June
  21, 1965 (32 CFR 233) and DoD Instruction 7310.1, ``Accounting and
  Reporting for Property Disposal and Proceeds from Sale of Disposable
  Personal Property and Lumber or Timber Products,'' July 10, 1970.\1\
\14\ Includes hunting and fishing.
\15\ Controlled hunting and fishing may be permitted for the purpose of
  wildlife control.



Sec. 256.9  Real estate interests to be considered for clear zones and 
accident potential zone.

    (a) The right to make low and frequent flights over said land and to 
generate noises associated with:
    (1) Aircraft in flight, whether or not while directly over said 
land,
    (2) Aircraft and aircraft engines operating on the ground at said 
base, and,
    (3) Aircraft engine test/stand/cell operations at said base.
    (b) The right to regulate or prohibit the release into the air of 
any substance which would impair the visibility or otherwise interfere 
with the operations of aircraft, such as, but not limited to, steam, 
dust and smoke.
    (c) The right to regulate or prohibit light emissions, either direct 
or indirect (reflective), which might interfere with pilot vision.
    (d) The right to prohibit electrical emissions which would interfere 
with aircraft and aircraft communications systems or aircraft 
navigational equipment.
    (e) The right to prohibit any use of the land which would 
unnecessarily attract birds or waterfowl, such as, but not limited to, 
operation of sanitary landfills, maintenance of feeding stations or the 
growing of certain types of vegetation attractive to birds or waterfowl.
    (f) The right to prohibit and remove any buildings or other non-
frangible structures.
    (g) The right to top, cut to ground level, and to remove trees, 
shrubs, brush or other forms of obstruction which the installation 
commander determines might interfere with the operation of aircraft, 
including emergency landings.
    (h) The right of ingress and egress upon, over and across said land 
for the purpose of exercising the rights set forth herein.
    (i) The right to post signs on said land indicating the nature and 
extent of the Government's control over said land.
    (j) The right to prohibit land uses other than the following:
    (1) Agriculture.
    (2) Livestock grazing.
    (3) Permanent open space.
    (4) Existing water areas.
    (5) Rights of way for fenced two lane highways, without sidewalks or 
bicycle trails and single track railroads.
    (6) Communications and utilities rights of way, provided all 
facilities are at or below grade.
    (k) The right to prohibit entry of persons onto the land except in 
connection with activities authorized under paragraphs (a), (b), (c), 
and (f) of this section.
    (l) The right to disapprove land uses not in accordance with Sec. 
256.8.
    (m) The right to control the height of structures to insure that 
they do not become a hazard to flight.
    (n) The right to install airfield lighting and navigational aids.



Sec. 256.10  Air installations compatible use zone noise descriptors.

    (a) Composite Noise Rating (CNR) and Noise Exposure Forecast (NEF) 
values as previously required by Sections III., IV., and V. of DoD 
Instruction 4165.57, ``Air Installations Compatible Use Zones,'' July 
30, 1973 \1\ will no longer be used.
---------------------------------------------------------------------------

    \1\ Filed as part of original. Copies available in the Office of the 
Assistant Secretary of Defense (Installations and Logistics)--IO, 
Washington, DC 20301.
---------------------------------------------------------------------------

    (b) Where CNR 100 (or the quietest boundary of CNR Zone 2 if 
otherwise computed) or NEF 30 would previously have been used, data 
shall be collected sufficient to permit computation of Ldn 65 noise 
contours and these noise contours shall be plotted on maps accompanying 
AICUZ studies.
    (c) Where CNR 115 (or the boundary of CNR Zone 3 if otherwise 
computed) or NEF 40 would previously have been used, data shall be 
collected sufficient to permit computation of Ldn 75 noise contours and 
these noise contours shall

[[Page 621]]

be plotted on maps accompanying AICUZ studies.
    (d) Where previous studies have used CNR or NEF, for meters of 
policy, noise planning and decisionmaking, areas quieter than Ldn 65 
shall be considered approximately equivalent to the previously used CNR 
Zone 1 and to areas quieter than NEF 30. The area between Ldn 65 and Ldn 
75 shall be considered approximately equivalent to the previously used 
CNR Zone 2 and to the area between NEF 30 and NEF 40. The area of higher 
noise than Ldn 75 shall be considered approximately equivalent to the 
previously used CNR Zone 3 and to noise higher the NEF 40. The 
procedures shall remain in effect only until sufficient data to compute 
land values can be obtained.
    (e) When computing helicopter noise levels using data collected from 
meters, a correction of +7db shall be added to meter readings obtained 
under conditions where blade slap was present until and unless matters 
are developed which more accurately reflect true conditions.
    (f) Noise contours less than Ldn 65 or more than Ldn 80 need not be 
plotted for AICUZ studies.
    (g) Since CNR noise levels are not normally directly convertible to 
Ldn values without introducing significant error, care should be 
exercised to assure that personnel do not revise previous studies by 
erroneously relabeling CNR contours to the approximately equivalent Ldn 
values.
    (h) Where intermittent impulse noises are such as are associated 
with bombing and gunnery ranges are of importance such noises will be 
measured using standard ``C'' weighing of the various frequencies to 
insure a description most representative of actual human response.



Sec. 256.11  Effective date and implementation.

    This part is effective immediately. Two copies of implementing 
regulations shall be forwarded to the Assistant Secretary of Defense 
(Installations and Logistics) within 90 days after publication of final 
rules.



PART 257_ACCEPTANCE OF SERVICE OF PROCESS--Table of Contents




Sec.
257.1 Purpose.
257.2 Applicability.
257.3 Definition.
257.4 Policy.
257.5 Responsibilities.

    Authority: 5 U.S.C. 301, 133.

    Source: 49 FR 1490, Jan. 12, 1984, unless otherwise noted.



Sec. 257.1  Purpose.

    This rule updates DoD policy governing acceptance of service of 
process served on the Secretary of Defense and the Secretaries of the 
Military Departments.



Sec. 257.2  Applicability.

    This rule applies to the Office of the Secretary of Defense (OSD) 
and the Military Departments.



Sec. 257.3  Definition.

    Service of Process. When applied to the filing of a court action 
against an officer or agency of the United States, service of process 
refers to the delivery or, when appropriate, receipt by mail, of a 
summons and complaint made in accordance with Rule 4, Federal Rules of 
Civil Procedure by serving the United States and by serving a copy of 
the summons and complaint by registered or certified mail to such 
officer or agency. It further signifies the delivery of a subpoena 
requiring a witness to appear and give testimony or of a subpoena 
requiring production of documents, or delivery of a subpoena for any 
other reason whether or not the matter involves the United States.



Sec. 257.4  Policy.

    It is DoD policy to accept service of process directed to the 
Secretary of Defense or a Secretary of a Military Department in his 
official capacity. Acceptance of service of process will not constitute 
an admission or waiver with respect to the jurisdiction or to the 
propriety of service.



Sec. 257.5  Responsibilities.

    The following responsibilities may not be redelegated:

[[Page 622]]

    (a) The General Counsel, Department of Defense, shall accept service 
of process for the OSD.
    (b) The Secretary of the Army, or his designee, the Chief, 
Litigation Division, Office of the Judge Advocate General, shall accept 
service of process for the Department of the Army.
    (c) The Secretary of the Navy, or his designee, the General Counsel, 
shall accept service of process for the Department of the Navy.
    (d) The Secretary of the Air Force, or his designee, the Chief, 
General Litigation Division, Office of the Judge Advocate General, shall 
accept service of process for the Department of the Air Force.



PART 258_COOPERATION WITH ALLIES IN RESEARCH AND DEVELOPMENT OF DEFENSE 
EQUIPMENT--Table of Contents




Sec.
258.1 Purpose.
258.2 Background.
258.3 Policy.
258.4 Criteria.
258.5 Procedures.
258.6 Responsibilities and authorities.

    Authority: 5 U.S.C. 301.

    Source: 33 FR 13024, Sept. 14, 1968, unless otherwise noted.



Sec. 258.1  Purpose.

    It is the purpose of this part to specify Defense Department policy 
for strengthening cooperation with Allies in research and development 
and to assign responsibilities for implementing it. This policy calls 
for maximum coordination of technical objectives and programs with those 
of our allies. It complements DoD Directive 3100.4, Harmonization of 
Qualitative Requirements for Defense Equipment of United States and 
Allies. \1\
---------------------------------------------------------------------------

    \1\ Copies available from Naval Supply Depot, 5801 Tabor Avenue, 
Philadelphia, Pa. 19120; Attn.: Code 300.
---------------------------------------------------------------------------



Sec. 258.2  Background.

    Cooperation in defense research and development between the United 
States and its Allies since World War II has been aimed primarily at 
assisting them, financially as well as technically, in developing 
indigenous capabilities. The economic status of certain of these Allies 
has now evolved beyond the point of warranting further financial 
assistance. However, the evolution of modern weapons of increasing cost 
and complexity makes the effective utilization of the aggregate of 
available technical resources a matter of concern to each nation.



Sec. 258.3  Policy.

    (a) The United States will cooperate with its Allies to the greatest 
degree possible in the development of defense equipment, where such 
cooperation is in the overall best interests of the United States. The 
objectives of such cooperation will be:
    (1) To make the best equipment available to the United States and 
its Allies in the most timely manner.
    (2) To increase the effectiveness of the scientific and technical 
resources of the United States and its Allies, especially by eliminating 
unnecessary and wasteful duplication of effort.
    (3) To achieve the maximum practicable degree of standardization of 
equipment.
    (4) To create closer military ties among the Alliance.
    (b) The United States will seek to enter in bilateral and 
multilateral agreements with its allies that will minimize waste 
resulting from purely duplicative R&D programs and, within the criteria 
stated in Sec. 258.4, encourage the establishment of a mutually 
acceptable free, fully competitive market for defense R&D. To this 
effect, the DoD will:
    (1) Continue to encourage the mutual development of technical 
capabilities, in particular through exchanges of significant 
information.
    (2) Coordinate exploratory, advanced and engineering development 
plans to minimize wasteful duplication.
    (3) Participate in joint development programs for major systems 
meeting harmonized requirements, whenever such programs meet the 
objectives and criteria listed in this part.
    (4) Consistent with OSD guidance, consider promising foreign as well 
as U.S. R&D resources prior to placing research and development 
contracts.

[[Page 623]]

    (5) Facilitate availability of U.S. R&D resources to foreign 
procurement agencies, on terms similar to those governing availability 
of these resources to U.S. agencies.
    (c) Necessary release of classified information will be in 
accordance with the provisions of the National Disclosure Policies.



Sec. 258.4  Criteria.

    (a) The general criteria for such cooperation will be:
    (1) Except for MAP ``grant-aid countries,'' no appropriations 
available to the DoD will be used to finance the foreign research and 
development effort unless the program is aimed at satisfying a United 
States military need.
    (2) Except for MAP ``grant-aid countries,'' cooperative R&D programs 
will be funded by Service RDT&E funds.
    (3) U.S. participation in jointly funded development programs will 
not be approved unless the United States receives design and production 
rights equivalent to those secured from domestic sources.
    (b) International balance-of-payments considerations have resulted 
in the establishment of certain specific restrictions pertinent to DoD 
overseas activities, including those relating to foreign R&D. The 
screening and selection of proposed R&D projects must be consistent with 
these restrictions. In this connection, preference should be given to 
the following types of joint R&D undertakings:
    (1) Projects that provide for the investment of foreign funds in 
U.S. R&D activities under mutually acceptable terms and conditions.
    (2) Projects that offer the U.S. good prospects for the ultimate 
sale of the end item or associated components to second and third 
foreign parties.
    (3) Projects that capitalize on the unique technical state-of-the-
art capabilities existing in a foreign country and offer prospects of 
saving the U.S. time and money in the R&D and production field.
    (4) Projects that enable the United States to assist and/or 
accommodate a foreign second party to accomplish joint R&D objectives 
without jeopardizing U.S. aspirations to promote future U.S. sales to 
third countries.



Sec. 258.5  Procedures.

    Procedures for accomplishing and administering the cooperative 
programs and projects will be integrated into DoD management systems so 
that decisions concerning national and international programs will be 
made by the same individuals.



Sec. 258.6  Responsibilities and authorities.

    (a) The Military Departments are charged with the primary 
responsibility for implementing this part.
    (b) The Director of Defense Research and Engineering will be 
responsible for monitoring the implementation of this part. He will:
    (1) Negotiate basic policy agreements with foreign Ministries of 
Defense as appropriate.
    (2) Consult with the Joint Chiefs of Staff on the interaction of 
research and development and strategic doctrines.
    (3) Seek formal statements of military operational requirements from 
the Military Departments or the JCS, as appropriate, for research and 
development projects and equipment areas which require such statements.
    (4) Recommend to the Secretary of Defense policy guidance and 
appropriate instructions for the Military Departments to assure 
consistency of their actions and conformity with National Policy.
    (5) Continually review progress made towards the objectives of this 
part.
    (6) Request policy guidance and support from Assistance Secretaries 
of Defense (ISA) (I&L) (Comp), and the General Counsel on matters within 
their respective fields of responsibility.
    (c) The Defense Advisor U.S. Mission to the North Atlantic Treaty 
Organization will assist the Director of Defense Research and 
Engineering, as directed, in supervising the implementation of this 
part.
    (d) Military Assistance Advisory Groups and Missions will provide 
advice and assistance to the Military Departments as requested and 
within the limits of availability of assigned resources. Those MAAGs and 
Missions within the North Atlantic Treaty Organization areas will 
provide advice and assistance to the Defense Advisor U.S. NATO when 
requested.

[[Page 624]]



PART 259_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION 
FOR FEDERAL AND FEDERALLY-ASSISTED PROGRAMS--Table of Contents




    Authority: Section 213, Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 
1894, (42 U.S.C. 4601) as amended by the Surface Transportation and 
Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 
101 Stat. 246-256 (42 U.S.C. 4601 note).



Sec. 259.1  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 
91-646, 84 Stat. 1894 42 U.S.C. 4601) as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV 
of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C. 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48020, Dec. 17, 1987]



PART 261_ARMED SERVICES MILITARY CLUB AND PACKAGE STORES--Table of 
Contents




Sec.
261.1 Purpose.
261.2 Applicability.
261.3 Policy.
261.4 Procedures.
261.5 Responsibilities.
261.6 Information requirements.

    Authority: 50 U.S.C. Appendix, Section 473, section 6.

    Source: 47 FR 34533, Aug. 10, 1982, unless otherwise noted.



Sec. 261.1  Purpose.

    This part incorporates DoD Directive 1330.15, ``Alcoholic Beverage 
Control,'' May 4, 1964, (which is hereby cancelled), provides policy and 
assigns responsibilities for the operation of military clubs and package 
stores of the Army, Navy, Air Force, and the Marine Corps; and 
authorizes the development, publication, and maintenance of DoD 1015.3-
R, ``Armed Services and Military Club and Package Store Regulations.''



Sec. 261.2  Applicability.

    The provisions of this part apply to the Office of the Secretary of 
Defense and the Military Departments, including DoD activities with 
clubs and package stores designated as a service (executive agent) 
responsibility, and Defense Agencies (hereinafter referred to as ``DoD 
Components''). The term ``Military Services,'' as used herein, refers to 
the Army, Navy, Air Force, and Marine Corps.



Sec. 261.3  Policy.

    It is the policy of the Department of Defense that Armed Services 
military clubs and package stores be established as an essential part of 
the DoD Morale, Welfare and Recreation (MWR) program. In addition, the 
Department of Defense shall establish controls and procedures governing 
the sale of alcoholic beverages in these clubs and package stores. 
Affirmative measures shall be taken to provide character guidance, 
emphasizing the harmful effects of the immoderate use of alcohol. 
Chaplains and local community and national organizations shall assist in 
this effort. Military clubs shall provide dining, essential feeding 
(where required), and social programs, services, and facilities to 
eligible patrons. Package stores shall provide the sale of alcoholic 
beverages purchased for off-premise consumption by authorized patrons, 
and also provide a resale source of alcoholic beverages for all other 
authorized activities under 50 U.S.C., Appendix, Section 473. The 
establishment, management, and control of club and package store 
nonappropriated fund instrumentalities (NAFIs) shall be in accordance 
with DoD Directive 1015.1, ``Establishment, Management, and Control of 
Nonappropriated Fund Instrumentalities (NAFIs),'' August 19, 1981.



Sec. 261.4  Procedures.

    Procedures and guidance are prescribed in DoD 1015.3-R, ``Armed 
Services Military Club and Package Store Regulations.'' Chapter 4, 
section C., of this guidance reads as follows:

    ``C. COOPERATION. The Department of Defense shall cooperate with 
local, state, and

[[Page 625]]

federal officials to the degree that their duties relate to the 
provisions of this chapter. However, the purchase of all alcoholic 
beverages for resale at any camp, post, station, base, or other DoD 
installation within the United States shall be in such a manner and 
under such conditions as shall obtain for the government the most 
advantageous contract, price and other considered factors. These other 
factors shall not be construed as meaning any submission to state 
control, nor shall cooperation be construed or represented as an 
admission of any legal obligation to submit to state control, pay state 
or local taxes, or purchase alcoholic beverages within geographical 
boundaries or at prices or from suppliers prescribed by any state.''



Sec. 261.5  Responsibilities.

    (a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, 
and Logistics) (ASD(MRA&AL)) shall:
    (1) Provide guidance and direction in carrying out the provisions of 
this part; and shall establish, maintain, and disestablish clubs and 
package stores in accordance with DoD Directive 1015.1.
    (2) Delegate executive agent responsibilities consistent with DoD 
Directive 1015.1.
    (3) Develop, publish, and maintain DoD 1015.3-R, consistent with DoD 
5025.1-M.
    (b) The Secretaries of the Military Departments shall:
    (1) Act as executive agents for the administration of clubs and 
package stores, consistent with DoD Directive 1015.1.
    (2) Establish a Fund Council whose composition and membership are 
provided at Chapter 1 of DoD 1015.3-R.
    (c) The Director of Defense Agencies shall coordinate with the 
Military Service concerned in the preparation of a memorandum of 
understanding detailing Defense Agency responsibilities for the 
operation of clubs and package stores under the direction, regulation, 
and administration of the Military Service concerned.



Sec. 261.6  Information requirements.

    (a) This part establishes a reporting requirement that is prescribed 
in Chapter 4 of DoD 1015.3-R for a triennial review of each package 
store.
    (b) Report Control Symbol DD-M(TRI)1593 has been assigned to this 
information requirement.



PART 263_TRAFFIC AND VEHICLE CONTROL ON CERTAIN DEFENSE MAPPING AGENCY 
SITES--Table of Contents




Sec.
263.1 Definitions.
263.2 Applicability.
263.3 Compliance.
263.4 Registration of vehicles.
263.5 Inspection of license and registration.
263.6 Speeding or reckless driving.
263.7 Emergency vehicles.
263.8 Signs.
263.9 Right-of-way in crosswalks.
263.10 Parking.
263.11 Penalties.

    Authority: 63 Stat. 377 as amended, 18 U.S.C. 13, 40 U.S.C. 318 a 
through d, 50 U.S.C. 797, Delegations, 43 FR 56895, 46 FR 58306.

    Source: 48 FR 34952, Aug. 2, 1983, unless otherwise noted.



Sec. 263.1  Definitions.

    As used in this part:
    (a) Brookmont site means those grounds and facilities of the Defense 
Mapping Agency Hydrographic/Topographic Center (DMAHTC) and the Defense 
Mapping Agency Office of Distribution Services (DMAODS) located in 
Montgomery County, Maryland, over which the Federal Government has 
acquired exclusive or concurrent jurisdiction.
    (b) Uniformed guard means a designated DMA government guard 
appointed to enforce vehicle and traffic regulations by the Director, 
DMAHTC.



Sec. 263.2  Applicability.

    The provisions of this regulation apply to all areas in the 
Brookmont site and to all persons on or within the site. They supplement 
those penal provisions of Title 18, U.S. Code, relating to crimes and 
criminal procedures, which apply without regard to the place of the 
offense and those provisions of state law which are made federal 
criminal offenses by virtue of the Assimilative Crimes Act, 18 U.S.C. 
13.



Sec. 263.3  Compliance.

    (a) All persons entering the site shall comply with this regulation; 
with all official signs; and with the lawful directions or orders of a 
uniformed guard

[[Page 626]]

in connection with the control or regulation of traffic, parking or 
other conduct at the Brookmont site.
    (b) At the request of a uniformed guard, a person must provide 
identification by exhibiting satisfactory credentials (such as driver's 
license).
    (c) No person shall knowingly give any false or fictitious report 
concerning an accident or violation of this regulation to any person 
properly investigating an accident or alleged violation.
    (d) All incidents resulting in injury to persons or damage to 
property must be reported to the Security Office immediately.
    (e) No person involved in an accident shall leave the scene of that 
accident without first giving aid or assistance to the injured and 
making his or her identity known.



Sec. 263.4  Registration of vehicles.

    (a) Newly assigned or employed individuals who intend to operate a 
privately-owned vehicle at the site shall register it with the Security 
Police Division within 24 hours after entry on duty.
    (b) Temporary registration for a specified period of time will be 
permitted for temporarily hired, detailed, or assigned personnel; 
consultants; contractors; visiting dignitaries, etc.



Sec. 263.5  Inspection of license and registration.

    No person may operate any motor vehicle on the site without a valid, 
current operator's license, nor may any person, if operating a motor 
vehicle on the site, refuse to exhibit for inspection, upon request of a 
uniformed guard, his operator's license or proof of registration of the 
vehicle under his control at time of operation.



Sec. 263.6  Speeding or reckless driving.

    (a) No person shall drive a motor vehicle on the site at a speed 
greater than or in a manner other that what is reasonable and prudent 
for the particular location, given the conditions of traffic, weather, 
and road surface and having regard to the actual and potential hazards 
existing.
    (b) Except when a special hazard exists that requires lower speed, 
the speed limit on the site is 15 m.p.h., unless another speed limit has 
been duly posted, and no person shall drive a motor vehicle on the site 
in excess of the speed limit.



Sec. 263.7  Emergency vehicles.

    No person shall fail or refuse to yield the right-of-way to an 
emergency vehicle when operating with siren or flashing lights.



Sec. 263.8  Signs.

    Every driver shall comply with all posted traffic signs.



Sec. 263.9  Right-of-way in crosswalks.

    No person shall fail or refuse to yield the right-of-way to a 
pedestrian or bicyclist crossing a street in the marked crosswalk.



Sec. 263.10  Parking.

    (a) No person, unless otherwise authorized by a posted traffic sign 
or directed by a uniformed guard, shall stand or park a motor vehicle:
    (1) On a sidewalk, lawn, plants or shrubs.
    (2) Within an intersection or within a crosswalk.
    (3) Within 15 feet of a fire hydrant, 5 feet of a driveway or 30 
feet of a stop sign or traffic control device.
    (4) At any place which would result in the vehicle being double 
parked.
    (5) At curbs painted yellow.
    (6) In a direction facing on-coming traffic.
    (7) In a manner which would obstruct traffic.
    (8) In a parking space marked as not intended for his or her use.
    (9) Where directed not to do so by a uniformed guard.
    (10) Except in an area specifically designated for parking or 
standing.
    (11) Except within a single space marked for such purposes, when 
parking or standing in an area with marked spaces.
    (12) At any place in violation of any posted sign.
    (13) In excess of 24 hours, unless permission has been granted by 
the Security Office.
    (b) No person shall park bicycles, motorbikes or similar vehicles in 
areas not designated for that purpose.

[[Page 627]]

    (c) Visitors shall park in areas identified for that purpose by 
posted signs and shall register their vehicles at the front desk of 
Erskine Hall, Ruth Building or Fremont Building.
    (d) No person, except visitors, shall park a motor vehicle on the 
Brookmont site without having a valid parking permit displayed on such 
motor vehicle in compliance with the instructions of the issuing 
authority.



Sec. 263.11  Penalties.

    (a) Except with respect to the laws of the State of Maryland 
assimilated under 18 U.S.C. 13, whoever shall be found guilty of 
violating these regulations is subject to a fine of not more than $50 or 
imprisonment of not more than 30 days, or both in accordance with 40 
U.S.C. 318c. Except as expressly provided in this part, nothing 
contained in these regulations shall be construed to abrogate any other 
Federal laws or regulations, or any State and local laws and regulations 
applicable to the area in which the site is situated.
    (b) In addition to the penalties described in subsection (a) of this 
section, parking privileges may be revoked by the issuing authority for 
violations of any of the provisions of this regulation.
    (c) Any motor vehicle that is parked in violation of this regulation 
may be towed away or otherwise moved if a determination is made by a 
uniformed guard that it is a nuisance or hazard. A fee for the moving 
service and for the storage of the vehicle, if any, may be charged, and 
the vehicle is subject to a lien for that charge.



PART 264_INTERNATIONAL INTERCHANGE OF PATENT RIGHTS AND TECHNICAL 
INFORMATION--Table of Contents




Sec.
264.1 Purpose and cancellation.
264.2 Scope.
264.3 Background.
264.4 Policy.
264.5 Claims for compensation.

    Authority: Secs. 601, 606, 75 Stat. 438, 440; 22 U.S.C. 2351, 2356.

    Source: 25 FR 14456, Dec. 31, 1960, unless otherwise noted.



Sec. 264.1  Purpose and cancellation.

    The purpose of this part is to restate Department of Defense policy 
concerning the international interchange for defense purposes of patent 
rights and technical information. DoD Directive 2000.3, ``Technical 
Property Interchange Agreements'', dated April 15, 1954, is hereby 
superseded and cancelled. Delegation published at 19 FR 2523 is 
cancelled.



Sec. 264.2  Scope.

    This part applies to the activities of all Department of Defense 
personnel involved in the international interchange for defense purposes 
of patent rights and technical information. The policy prescribed herein 
applies to unclassified as well as classified information, owned by the 
United States Government or privately owned, but does not apply to 
patents, patent applications, and technical information in the field of 
atomic energy.



Sec. 264.3  Background.

    (a) Pursuant to the provisions of the Mutual Security Act of 1954, 
as amended, and of predecessor legislation superseded by that Act, the 
United States has entered into agreements for the Interchange of Patent 
Rights and Technical Information for Defense Purposes with Australia, 
Belgium, Denmark, France, the Federal Republic of Germany, Greece, 
Italy, Japan, The Netherlands, Norway, Portugal, Spain, Turkey, and the 
United Kingdom. The agreements, which are published in the Treaties and 
Other International Act Series, are basically similar in substance but 
are not identical. Under the agreements:
    (1) Each government undertakes to facilitate the interchange of 
privately owned patent rights and of technical information through the 
medium of commercial relationships, to the extent permitted by the laws 
and security requirements of the contracting governments.
    (2) When technical information is supplied by one government to the 
other for information only, the recipient government undertakes to treat 
the information as disclosed in confidence and to use its best endeavors 
to ensure that the information is not

[[Page 628]]

dealt with in any manner likely to prejudice the rights of the owner to 
obtain patent or similar statutory protection.
    (3) When technical information supplied by one government to the 
other discloses an invention which is the subject of a patent or patent 
application held in secrecy in the country of origin, the recipient 
government undertakes to accord similar treatment to a corresponding 
patent application filed in that country.
    (4) When privately owned technical information is released by one 
government to the other and the recipient government uses or disclosed 
the information, the owner shall, subject to the extent that the owner 
may be entitled thereto under the applicable law and subject to 
arrangements between the contracting governments regarding the 
assumption as between them of liability for compensation, receive 
prompt, just and effective compensation for such use and for any damages 
resulting from such use or disclosure.
    (5) Each government is entitled to use for defense purposes without 
cost any invention which the other government (including government 
corporations) owns or to which it has the right to grant a license to 
use, except to the extent that there may be liability to any private 
owner of an interest in the invention.
    (b) Each of these agreements establishes a Technical Property 
Committee consisting of a representative of each contracting government, 
whose function it is to consider and make recommendations to the 
contracting governments on all matters relating to the subject of the 
agreement and to assist where appropriate in the negotiation of 
commercial or other agreements for the use of patent rights and 
technical information in the military assistance program.
    (1) The Patent Advisor assigned to the Defense Staff of the U.S. 
Mission to the North Atlantic Treaty Organization and European Regional 
Organizations (USRO), Paris, France, is the United States representative 
to the Technical Property Committees in Europe. The J-4, Hq. United 
States Forces Japan, Tokyo, Japan is the United States representative to 
the United States-Japanese Technical Property Committee. A member of the 
Office of Assistant General Counsel, International Affairs, Office of 
the Secretary of Defense, is the United States representative to the 
United States-Australian Technical Property Committee. The appropriate 
representative should be consulted on all problems dealing with patent 
rights, technical information and related matters under the agreements.
    (2) These representatives receive policy guidance from the 
Department of Defense. The Assistant Secretary of Defense for 
International Security Affairs is responsible within the Department of 
Defense for transmitting such policy guidance through appropriate 
channels. Guidance transmitted for the United States representative in 
Europe shall be forwarded to the Defense Advisor, USRO; guidance 
transmitted for the United States representative in Japan shall be 
transmitted to the Commanding General, United States Forces Japan.
    (c) Department of Defense problems arising in the United States in 
connection with the interchange of patent rights and privately owned 
technical information should be referred to the patent activity of the 
appropriate Military Department.

[25 FR 14456, Dec. 31, 1960, as amended at 26 FR 1993, Mar. 8, 1961; 26 
FR 6479, July 19, 1961]



Sec. 264.4  Policy.

    It is the policy of the Department of Defense to encourage and 
facilitate international interchanges of patent rights and technical 
information to further the common defense of the United States and 
friendly nations. In achieving this purpose, the following principles 
shall be observed.
    (a) Classified military information shall be released only through 
Government channels and only when consistent with the National 
Disclosure Policy, or when approved as an exception to that policy.
    (b) In accordance with the Congressional policy prescribed by 
section 413(a) of the Mutual Security Act of 1954, as amended (22 U.S.C. 
1933(a)), and pursuant to the bilateral agreements

[[Page 629]]

referred to in Sec. 264.3, commercial relationships shall be utilized 
whenever appropriate and to the maximum extent feasible in order to 
encourage the participation of private enterprise in the Mutual Security 
Program, to relieve the Department of Defense of administrative burdens, 
and to reduce the costs to the United States of such interchanges.
    (c) In accordance with section 414 of the Mutual Security Act of 
1954, as amended (22 U.S.C. 1934), the utilization of commercial 
channels for the exportation of unclassified privately owned technical 
information relating to articles designated as arms, ammunition, and 
implements of war in the United States Munitions List shall be subject 
to the regulations issued by the Secretary of State pursuant to section 
414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934) 
(Title 22 CFR, chapter I, subchapter M). (The term ``technical data'' is 
used in those regulations to describe technical information relating to 
such articles).
    (d) Technical information which might be privately owned may be 
released under paragraph (e) (1) or (2) of this section by Department of 
Defense Agencies to foreign governments if any one of the following 
conditions are met:
    (1) The owner expressly consents to the proposed release;
    (2) The United States, by contract or otherwise, has acquired or is 
entitled to acquire, the information under circumstances which permit 
the proposed release; or
    (3) The Secretary of the Military Department concerned, or his 
designee, determines, under the authority of the Mutual Security Act of 
1954, as amended, that:
    (i) The exigencies of the requirement for release to further the 
common defense do not allow sufficient time to obtain the consent of the 
owner; or
    (ii) The owner refuses consent and the best interests of the United 
States would be served by the release.
    (e) In accordance with the provisions of the agreements referred to 
in Sec. 264.3, the release to foreign governments by Department of 
Defense agencies of technical information which might be privately owned 
shall normally be in accord with the following two step procedure:
    (1) Release for information only.
    (2) Permission for manufacture, or use, for defense purposes.
    (f)(1) All technical information, whether privately owned or 
government owned, released to a foreign government by Department of 
Defense Agencies shall be marked with the following restrictions:

    1. This information is accepted for defense purposes only.
    2. This information shall be accorded substantially the same degree 
of security protection as such information has in the United States.
    3. This information shall not be disclosed to another country 
without the consent of the United States.

    (2) When technical information which might be privately owned is 
released for information only, the restrictive marking shall also 
contain these additional notations:

    4. This information is accepted upon the understanding that it might 
be privately owned.
    5. This information is accepted solely for the purpose of 
information and shall accordingly be treated as disclosed in confidence. 
The recipient Government shall use its best endeavors to ensure that the 
information is not dealt with in any manner likely to prejudice the 
rights of the private owner thereof to obtain patent or other like 
statutory protection therefor.
    6. The recipient Government shall obtain the consent of the United 
States if it desires that this information be made available for 
manufacture, or use, for defense purposes.

    (g) When technical information which might be privately owned is 
released under the procedures set forth herein, the owner, if known, 
shall be furnished:
    (1) Notice of the release;
    (2) The identity of the recipient, if not contrary to security 
regulations;
    (3) Notice that the recipient has been advised that the information 
might be privately owned; and
    (4) Notice of the restrictions to which the release is subject.



Sec. 264.5  Claims for compensation.

    (a) With respect to interchanges in furtherance of the purposes of 
the Mutual Security Act of 1954, as amended, section 506 of the Mutual 
Security Act

[[Page 630]]

of 1954, as amended (22 U.S.C. 1758) provides the exclusive remedy for 
compensation for infringement within the United States of a patent 
issued by the United States and for damage resulting from the disclosure 
by the United States of privately owned technical information.
    (b) The Secretaries of the Military Departments are hereby 
authorized to exercise the power and authority conferred by section 506 
of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758) to enter 
into agreements with claimants in full settlement and compromise of any 
claim against the United States thereunder, subject to such rules and 
regulations, if any, as the Secretary of Defense may promulgate from 
time to time. The Secretaries of the Military Departments are authorized 
to make successive redelegations in writing of this power and authority 
to any officer, employee, board or agent of their respective 
departments.
    (c) Funds appropriated for military assistance pursuant to the 
Mutual Security Act of 1954, as amended, which have been made available 
to a Military Department may be used to settle claims under section 506 
of the Mutual Security Act of 1954, as amended (22 U.S.C. 1758). In 
addition, in those cases where the provisions of 10 U.S.C. 2386 are 
applicable, funds appropriated for a Military Department available for 
making or procuring supplies may be used to settle such claims.



PART 266_AUDITS OF STATE AND LOCAL GOVERNMENTS, INSTITUTIONS OF HIGHER 
EDUCATION, AND OTHER NONPROFIT INSTITUTIONS--Table of Contents




Sec.
266.1 Purpose.
266.2 Applicability.
266.3 Definitions.
266.4 Policy.
266.5 Responsibilities.
266.6 Procedures.

    Authority: 10 U.S.C. 140.

    Source: 56 FR 36003, July 30, 1991, unless otherwise noted.



Sec. 266.1  Purpose.

    This part:
    (a) Updates policy, responsibilities, and procedures.
    (b) Implements Public Law 98-502 (31 U.S.C. 7501-7507 and 3512) and 
Office of Management and Budget (OMB) Circulars A-128 \1\ and A-133 \2\ 
to establish audit requirements for State and local governments, 
institutions of higher education, and other nonprofit institutions that 
receive Federal financial assistance.
---------------------------------------------------------------------------

    \1\ Forward written requests to: Office of Management and Budget 
Publications, 725 17th Street, NW. New Executive Office Building, 
Washington, DC 20503.
    \2\ See footnote 1 to Sec. 266.1(b).
---------------------------------------------------------------------------

    (c) Assigns responsibilities within the Department of Defense for 
monitoring compliance with those requirements.



Sec. 266.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Chairman of the Joint Chiefs of Staff and the 
Joint Staff, the Unified and Specified Commands, the Inspector General 
of the Department of Defense (IG, DoD), the Defense Agencies, and the 
DoD Field Activities (hereafter referred to collectively as ``the DoD 
Components'') that provide Federal financial assistance to State and 
local governments, institutions of higher education, and other nonprofit 
institutions.



Sec. 266.3  Definitions.

    Terms used in this part are defined in OMB Circulars A-128 and A-133 
with the following deviation. Funds paid by the National Guard Bureau to 
States under facilities' operation and maintenance agreements do not 
constitute ``Federal financial assistance'' for purposes of Public Law 
98-502 and OMB Circular A-128.



Sec. 266.4  Policy.

    The DoD Components shall rely on and use financial and performance 
audits performed by non-Federal auditors under OMB Circular A-128 and 
independent auditors under OMB Circular A-133 in the oversight of 
Federal financial assistance provided to State and local governments, 
institutions of higher education, and other nonprofit

[[Page 631]]

institutions. Public Law 98-502 provides that a non-Federal audit of the 
operations of a State or local government performed under OMB Circular 
A-128 may exclude public colleges and universities, in which case an 
audit of the public college or university shall be made in accordance 
with OMB Circular A-133. The DoD Components, however, may request 
additional audits of such assistance when required by regulation or to 
ensure effective use of such assistance as deemed necessary. Any 
additional audit effort shall be planned and carried out in such a way 
as to avoid duplication and shall be separately funded.



Sec. 266.5  Responsibilities.

    (a) The Inspector General of the Department of Defense shall:
    (1) Serve as the DoD senior official under OMB Circulars A-128 and 
A-133 for policy guidance, direction, and coordination with DoD 
Components and other Federal Agencies on audit matters related to State 
and local governments, institutions of higher education and other 
nonprofit institutions.
    (2) For State and local governments, institutions of higher 
education, and other nonprofit institutions for which the OMB has 
assigned the DoD cognizance, do the following:
    (i) Ensure that audits are made and reports are received in a timely 
manner and in accordance with the requirements of OMB Circulars A-128 
and A-133.
    (ii) Provide technical advice and liaison through the DoD Components 
to State and local governments, institutions of higher education, other 
nonprofit institutions, and independent auditors.
    (iii) Make desk reviews of all reports received, and also make 
quality control reviews of selected audits made by non-Federal audit 
organizations and provide the results, when appropriate, to other 
interested organizations.
    (iv) Promptly inform other affected Federal Agencies and appropriate 
law enforcement officials of any reported illegal acts or irregularities 
in accordance with requirements of OMB Circulars A-128 and A-133.
    (v) Advise the recipient of audits that have been found not to have 
met the requirements in OMB Circulars A-128 and A-133. In such 
instances, the recipient will work with the auditor to take corrective 
action. If corrective action is not taken, the cognizant agency shall 
notify the recipient and Federal awarding agencies of the facts and make 
recommendations for followup action. Major inadequacies or repetitive 
sub-standard performance of independent auditors shall be referred to 
appropriate professional bodies for disciplinary action.
    (vi) Coordinate, to the extent practicable, audits requested by 
other Federal Agencies, in addition to those required by OMB Circulars 
A-128 and A-133.
    (vii) Ensure the resolution of audit findings and recommendations 
that affect DoD programs and those findings affecting programs of more 
than one Federal Agency. Ensure that a management decision affecting 
audit resolution shall be made within 6 months after receipt of the 
audit report.
    (3) For local governments, institutions of higher education, and 
other nonprofit institutions for which the Department of Defense has 
assumed oversight responsibility, do the following:
    (i) Provide technical advice and counsel through DoD Components to 
institutions and independent auditors when requested.
    (ii) Assume all or some of the cognizant agency responsibilities 
(see paragraph (a)(2) of this section), as deemed necessary.
    (4) For other State and local governments, institutions of higher 
education, and other nonprofit institutions, receive and distribute 
copies of single audit reports to appropriate DoD Components for 
appropriate action and followup by designated program officials.
    (5) For audit reports that contain conditions affecting DoD 
programs, institute followup efforts to ensure that corrective actions 
have been taken by DoD organizations responsible for managing associated 
programs or funds.
    (b) The Heads of the DoD Components shall:
    (1) Designate an official to coordinate with the IG, DoD, on matters

[[Page 632]]

dealing with audits of financial assistance provided by the DoD 
Component to State and local governments, institutions of higher 
education, and other nonprofit institutions.
    (2) Ensure input of accurate award data for Federal financial 
assistance to the appropriate DoD management information system.
    (3) Ensure that the State or local government, institution of higher 
education, or other nonprofit institution takes appropriate actions to 
correct audit deficiencies involving financial assistance provided by 
the DoD Component.
    (4) For State and local governments, institutions of higher 
education, and other nonprofit institutions for which the OMB has 
assigned DoD cognizance, do the following:
    (i) Coordinate with the IG, DoD, on requests from other Federal 
Agencies for audits of State and local governments, institutions of 
higher education, and other nonprofit institutions, in addition to those 
required by OMB Circulars A-128 and A-133.
    (ii) Seek the views of other interested agencies when a coordinated 
audit approach is to be used and before completing a coordinated 
program.
    (iii) Help coordinate the audit work and reporting responsibilities 
among independent public accountants, State auditors, and both resident 
and non-resident Federal auditors to achieve the most cost-effective 
audit.



Sec. 266.6  Procedures.

    The costs of audits made by non-Federal auditors under OMB Circulars 
A-128 and A-133 are allowable charges to Federal financial assistance 
programs. The charges may be considered as a direct cost or an allocated 
indirect cost in accordance with OMB Circulars A-87, A-122 and A-21 \3\; 
FAR, part 31 (48 CFR part 31); or the DFARS, part 231 (48 CFR part 231). 
Generally, the percentage of costs charged to Federal assistance 
programs for an audit shall not exceed the percentage of Federal funds 
expended to the total funds expended by the recipient during the fiscal 
year. No cost, however, may be charged to Federal programs for audits 
not made in accordance with OMB Circulars A-128 and A-133 and other 
applicable cost principles and regulations.

    \3\ See footnote 1 to Sec. 266.1(b).
---------------------------------------------------------------------------



PART 268_COLLECTING AND REPORTING OF FOREIGN INDEBTEDNESS WITHIN THE 
DEPARTMENT OF DEFENSE--Table of Contents




Sec.
268.1 Purpose.
268.2 Applicability.
268.3 Policy.
268.4 Responsibilities.
268.5 Collection and followup procedures.
268.6 Reporting of accounts receivable and sales under 120 days delayed 
          payment terms (short-term credit).
268.7 Collecting and reporting of foreign debts under long-term loans 
          and debts.
268.8 Flash report of major foreign debt arrearages.
268.9 Discussion of terms.

    Authority: Federal Claims Collection Act of 1966 (31 U.S.C. 951-
953); Arms Export Control Act, sec. 23.

    Source: 43 FR 11196, Mar. 17, 1978, unless otherwise noted.



Sec. 268.1  Purpose.

    This part establishes standard procedures to be used for the 
collecting and reporting of foreign indebtedness. Such indebtedness may 
arise through the (a) sale of Defense articles and services pursuant to 
the Arms Export Control Act; (b) operation of military missions; and (c) 
logistical support provided under country-to-country agreements.



Sec. 268.2  Applicability.

    The provisions of this part apply to the Office of the Secretary of 
Defense, the Military Departments, and the Defense Agencies (hereafter 
referred to as ``DoD Components'').



Sec. 268.3  Policy.

    It is the policy of the Department of Defense that timely and 
aggressive collection efforts will be conducted to assure that foreign 
arrearages to DoD Components are held to the absolute minimum. Foreign 
indebtedness will be uniformly and accurately reported to the Department 
of the Treasury on

[[Page 633]]

forms prescribed by the Treasury Fiscal Requirements Manual. The 
information system on the status of collection actions will support the 
information requirements of the National Advisory Council on 
International Monetary and Financial Policies (NAC).



Sec. 268.4  Responsibilities.

    (a) The assistant Secretary of Defense (Comptroller) is the DoD 
point of contact for matters concerning foreign indebtedness 
requirements imposed on DoD from outside the Department, such as by the 
Congress, Treasury Department, and NAC.
    (b) The Defense Security Assistance Agency (DSAA) is responsible for 
consolidation of feeder arrearage reports and submission of a single 
consolidated DoD arrearage report to the Treasury Department. The DSAA 
shall (1) monitor collection actions; (2) follow up when initial 
collection actions have been unsuccessful; and (3) serve as the focal 
point within DoD for responding to NAC information requests.
    (c) Unless otherwise directed, the DoD Component which makes the 
sale, or is otherwise assigned responsibility, is responsible for taking 
initial collection action, accounting for indebtedness, preparation of 
feeder arrearage reports, and providing copies of arrearage reports to 
the DSAA.



Sec. 268.5  Collection and followup procedures.

    Each DoD Component is responsible for taking timely and aggressive 
billing and followup collection actions for each category of 
indebtedness incurred by official and private obligors pursuant to 
authorized programs.



Sec. 268.6  Reporting of accounts receivable and sales under 120 days 
delayed payment terms (short-term credit).

    (a) General. (1) Amounts payable to DoD Components for sales of 
Defense articles and services on terms which require payment of cash in 
advance of delivery/performance or within 60 days thereof will be 
classified as accounts receivable. Military Departments shall submit 
reports to the DSAA of foreign indebtedness related to those sales.
    (2) Sales made by DoD Components under existing cases which provide 
for 120-day payment terms shall be classified as short-term credit 
sales. Similarly, those sales made after September 30, 1976, under 
special emergency appropriations which provide for payments 120 days 
after delivery of articles or services will also be classified as short-
term credit sales. DoD Components shall submit reports to the DSAA of 
these short-term credit sales.
    (3) Foreign indebtedness to DoD Components for logistical support, 
mission support costs, and other programs is payable upon presentation 
of the appropriate billing documents. Reports of foreign indebtedness 
related to these programs will be submitted to the DSAA.
    (b) Basis for reporting. Amounts to be reported will be determined 
by analyzing unpaid bills using the criteria and definitions contained 
in Sec. 268.9.



Sec. 268.7  Collecting and reporting of foreign debts under long-term 
loans and debts.

    The DSAA is responsible for administering FMS long-term loans and 
credit programs authorized by Section 23 of the Arms Export Control Act, 
and likewise is responsible for determining foreign indebtedness against 
these programs. Debts remaining uncollected 90 days after the due date 
will be referred to the State Department for diplomatic assistance to 
effect settlement.



Sec. 268.8  Flash report of major foreign debt arrearages.

    Major foreign debt arrearages are monitored by the NAC. Therefore, 
periodically DSAA will request flash reports from the DoD Components to 
satisfy NAC requirements for information on major foreign debt 
arrearages. For this purpose, a ``major'' foreign debt arrearage is any 
country program arrearage which involves the sum of $250,000 or more. 
Flash reports will be submitted directly to DSAA by the local command in 
message form with information copies to the next higher command. The 
report will reflect any significant changes in major foreign debt 
arrearages from the quarterly foreign indebtedness reports submitted in

[[Page 634]]

accordance with Sec. 268.6. Collections, information on increased 
indebtedness, problems encountered in unsuccessful collection attempts, 
or country circumstances which may adversely affect collections are 
examples of the information which should be included in the flash 
reports.



Sec. 268.9  Discussion of terms.

    (a) Accounts receivable. ``Accounts receivable'' consist of those 
amounts due in which the original payment time required full payment 
within 90 days of delivery or performance. It excludes principal 
payments or interest on short-term and long-term loans and credits.
    (b) Arrearage delinquency determination. Obligations generated by 
formal agreements, as in the case of Foreign Military Sales contracts, 
are due on the dates specified in the contract or on the date specified 
in billings rendered in accordance with these contracts. Obligations 
incurred under Military Mission Support (Program 142) Logistical Support 
(Program 143) and any other authorized programs are due on the date 
billings are made to the customer country unless otherwise stated in the 
bill. Followup and reporting actions required by this part will be taken 
based on these dates. (See Sec. 268.5.)
    (c) Country designations. For reporting purposes, grants and 
contingent liabilities will be identified with the country which 
receives the benefit. Loans and credits will be identified generally 
with the country of the obligor or, in the instance of official 
multinational organizations, with the institution name. When the project 
is located in, or goods are destined for another country or area, the 
latter country or area should be stated in the description of purpose. 
If a government credit intermediary is the obligor, the transaction 
should be identified with the country where the project is located or 
the goods are destined.
    (1) United States. ``United States'' shall mean the states of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, American Samoa, the Canal Zone, Guam, Midway Island, U.S. Virgin 
Islands, and Wake Island.
    (2) Foreign country designations. Country designations other than 
the ``United States'' shall be consistent with the standardized names 
and codes contained in the Military Assistance and Sales Manual (MASM).
    (3) Official Multinational Organization. For reporting purposes, 
``Official Multinational Organization'' shall mean any international or 
regional organization (or affiliated agency thereof) created by treaty 
or convention between sovereign states.
    (d) Dollar equivalents of foreign currency. Represents dollar 
equivalent of all foreign currency amounts disbursed and still 
outstanding, undisbursed balances, and arrearages of principal and 
interest. They shall be computed at the reporting rate prescribed by 
Treasury Department Circular No. 930 for balances as of the end of the 
reporting period. The dollar equivalents of all other reportable amounts 
shall be the summation of individual transactions computed at the 
reporting rate prescribed for the period in which the transactions 
occurred.
    (e) Foreign indebtedness. ``Foreign indebtedness'' means financial 
obligations owed to the U.S. Government by the following entities in 
connection with DoD activities.
    (1) Any individual, including a citizen of the United States 
(excluding U.S. military members and U.S. Government employees) 
domiciled outside the United States.
    (2) Any partnership, association, corporation, or other organization 
created or organized under the laws of a foreign country, excepting 
branches or agencies thereof located in the United States.
    (3) Any branch, subsidiary, or allied organization within a foreign 
country of a partnership, association, corporation, or other 
organization created or organized under the laws of a foreign country or 
the United States.
    (4) Any government of a foreign country and any subdivision, agency, 
or instrumentality thereof, including all foreign ``Official'' 
institutions, even though located in the United States.
    (5) Any private relief, philanthropic, or other organization of a 
multinational or regional character with headquarters abroad.

[[Page 635]]

    (6) Any official multinational organization, defined as any 
international or regional organization (or affiliated agency thereof) 
created by treaty or convention between sovereign states.
    (f) Indebtedness. ``Indebtedness'' within the context of this part 
refers to financial obligations to make payment(s) to the U.S. 
Government in accordance with contractual or other arrangements. Such 
obligations generally arise from
    (1) The disbursements of cash to be repaid at a future time (with or 
without interest),
    (2) The extension of credit (by formal agreement or an open book 
account) in connection with the sale of products, property, or services,
    (3) The formal deferral of interest collection,
    (4) The purchase or repurchase of obligations that have been insured 
or guaranteed by the U.S. Government, and
    (5) Payments by the U.S. Government in cases of default on insured 
or guaranteed loans and other investments when the U.S. Government 
acquires a debt instrument from the insured.
    (g) Long-term loans and credits. ``Long-term loans and credits'' 
include any indebtedness under which the original payment terms provided 
for payment within a period of time exceeding one year after delivery or 
performance.
    (h) Official obligor. ``Official obligors'' are debtors or 
guarantors who are:
    (1) Central governments or their departments (ministries) or 
components, whether administrative or commercial.
    (2) Political subdivisions such as states, provinces, departments, 
and municipalities.
    (3) Foreign central banks.
    (4) Other institutions (such as corporations, development banks, 
railways, and utilities) when (i) the budget of the institution is 
subject to the approval of the government, or (ii) the government owns 
more than 50 percent of the voting stock or more than half of the 
members of the board of directors are government representatives, or 
(iii) in the case of default the government or central bank would become 
liable for the debt of the institution.
    (5) Any official multinational organization.
    (i) Private obligor. ``Private obligors'' are all debtors or 
guarantors who are not defined as ``official obligors.''
    (j) Program. ``Program'' is the law, international treaty, 
appropriation, or other authority under which the loans or credits are 
extended, or the accounts receivable arise. When a narrative program 
designation is required, commonly used terms should be used, e.g., Arms 
Export Control Act, Logistical Support, and Military Assistance Advisory 
Groups.
    (k) Short-term loans and credits. ``Short-term loans and credits'' 
include any indebtedness under which the original payment terms provided 
for payment within a period from 90 days to and including one year after 
delivery or performance.
    (l) Time conventions. The terms 30, 60 and 90 days should be 
interpreted to mean 1, 2, and 3 calendar months, respectively. That is, 
the period February 6 through May 5 would be considered to be 90 days. 
For example, in calculating amounts ``due and unpaid'' 90 days or more 
as of December 31 the amounts due before October 1 and remaining unpaid 
as of December 31 would be reportable. However, amounts due as of 
October 1 but remaining unpaid at December 31 would not be reportable.



PART 269_CIVIL MONETARY PENALTY INFLATION ADJUSTMENT--Table of Contents




Sec.
269.1 Scope and purpose.
269.2 Definitions.
269.3 Civil monetary penalty inflation adjustment.
269.4 Cost of living adjustments of civil monetary penalties.
269.5 Application of increase to violations.

    Authority: 28 U.S.C. 2461.

    Source: 61 FR 67945, Dec. 26, 1996, unless otherwise noted.



Sec. 269.1  Scope and purpose.

    The purpose of this part is to establish a mechanism for the regular 
adjustment for inflation of civil monetary penalties and to adjust such 
penalties in conformity with the Federal Civil Penalties Inflation 
Adjustment

[[Page 636]]

Act of 1990, 46 U.S.C. 2461, as amended by the Debt Collection 
Improvement Act of 1996, Public Law 104-134, April 26, 1996, in order to 
maintain the deterrent effect of civil monetary penalties and to promote 
compliance with the law.



Sec. 269.2  Definitions.

    (a) Department. The Department of Defense.
    (b) Civil monetary penalty. Any penalty, fine, or other sanction 
that:
    (1)(i) Is for a specific monetary amount as provided by Federal law; 
or
    (ii) Has a maximum amount provided by Federal law;
    (2) Is assessed or enforced by the Department pursuant to Federal 
law; and
    (3) Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal Courts.
    (c) Consumer Price Index. The index for all urban consumers 
published by the Department of Labor.



Sec. 269.3  Civil monetary penalty inflation adjustment.

    The Department shall, not later than 180 days after the enactment of 
the Debt Collection Improvement Act on April 23, 1996, and at least once 
every 4 years thereafter--
    (a) By regulation adjustment each civil monetary penalty provided by 
law within the jurisdiction of the Department of Defense by the 
inflation adjustment described in Sec. 269.4; and
    (b) Publish each such update in the Federal Register.



Sec. 269.4  Cost of living adjustments of civil monetary penalties.

    (a) The inflation adjustment under Sec. 269.3 shall be determined 
by increasing the maximum civil monetary penalty for each civil monetary 
penalty by the cost-of-living adjustment. Any increase determined under 
this paragraph shall be rounded to the nearest:
    (1) Multiple of $10 in the case of penalties less than or equal to 
$100;
    (2) Multiple of $100 in the case of penalties greater than $100 but 
less than or equal to $1,000;
    (3) Multiple of $1,000 in the case of penalties greater than $1,000 
but less than or equal to $10,000;
    (4) Multiple of $5,000 in the case of penalties greater than $10,000 
but less than or equal to $100,000;
    (5) Multiple of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) Multiple of $25,000 in the case of penalties greater than 
$200,000.
    (b) For purposes of paragraph (a) of this section, the term ``cost-
of-living adjustment'' means the percentage (if any) for each civil 
monetary penalty by which the Consumer Price Index for the month of June 
of the calendar year preceding the adjustment, exceeds the Consumer 
Price Index for the month of June of the calendar year in which the 
amount of such civil monetary penalty was last set or adjusted pursuant 
to law.
    (c) Limitaiton on initial adjustment. The first adjustment of civil 
monetary penalty pursuant to Sec. 269.3 may not exceed 10 percent of 
such penalty.
    (d) Inflation adjustment. Maximum civil monetary penalties within 
the jurisdiction of the Department of Defense are adjusted for inflation 
as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                         New
                                                                                          Maximum      adjusted
          United States Code citation             Civil monetary penalty description      penalty      maximum
                                                                                         amount as     penalty
                                                                                        of 10/23/96     amount
----------------------------------------------------------------------------------------------------------------
10 U.S.C. 1094(c)(1)..........................  Unlawful Provision of Health Care.....       $5,000       $5,500
10 U.S.C. 1102(k).............................   Wrongful Disclosure--Medical Records:
                                                First Offense.........................        3,000        3,300
                                                Subsequent Offense....................       20,000       22,000
31 U.S.C. 1352................................  Use of Appropriated Funds to Influence
                                                 Contract:
                                                Minimum...............................       10,000       11,000
                                                Maximum...............................      100,000      110,000
31 U.S.C. 3721(i).............................  Personal Property Loss Claims from            1,000        1,100
                                                 Government Personnel.
31 U.S.C. 3802(a)(1)..........................  Program Fraud Civil Remedies Act/             5,000        5,500
                                                 Violation Involving False Claim.
31 U.S.C. 3802(a)(2)..........................  Program Fraud Civil Remedies Act/             5,000        5,500
                                                 Violation Involving False Statement.

[[Page 637]]

 
33 U.S.C. 1319(g)(2)(A).......................  Sec. 404 Permit Condition Violation,       10,000       11,000
                                                 Class I (per violation amount).
33 U.S.C. 1319(g)(2)(A).......................  Sec. 404 Permit Condition Violation,       25,000       27,500
                                                 Class I (maximum amount).
33 U.S.C. 1319(g)(2)(B).......................  Sec. 404 Permit Condition Violation,       10,000       11,000
                                                 Class II (per day amount).
33 U.S.C. 1319(g)(2)(B).......................  Sec. 404 Permit Condition Violation,      125,000      137,500
                                                 Class II (maximum amount).
----------------------------------------------------------------------------------------------------------------



Sec. 269.5  Application of increase to violations.

    Any increase in a civil monetary penalty under this part shall apply 
only to violations which occur after the date the increase takes effect.



PART 270_COMPENSATION OF CERTAIN FORMER OPERATIVES INCARCERATED BY THE 
DEMOCRATIC REPUBLIC OF VIETNAM--Table of Contents




                            Subpart A_General

Sec.
270.1 Purpose.
270.2 Definitions.
270.3 Effective date.

                          Subpart B_Commission

270.4 Membership.
270.5 Staff.

           Subpart C_Standards and Verification of Eligibility

270.6 Standards of eligibility.
270.7 Verification of eligibility.

                            Subpart D_Payment

270.8 Authorization of payment.
270.9 Amount of payment.
270.10 Time limitations.
270.11 Limitation on disbursements.
270.12 Payment in full satisfaction of all claims against the United 
          States.
270.13 No right to judicial review or legal cause of action.
270.14 Limitation on attorneys fees.
270.15 Waiver of notary requirement.

                       Subpart E_Appeal Procedures

270.16 Notice of the Commission's determinations.
270.17 Procedures for filing petitions for reconsideration.
270.18 Action on reconsideration.

                      Subpart F_Reports to Congress

270.19 Reports to Congress.

Appendix A to Part 270--Application for Compensation of Vietnamese 
          Commandos

    Authority: Sec. 657, Pub. L. 104-201, 110 Stat. 2422.

    Source: 63 FR 3472, Jan. 23, 1998, unless otherwise noted.



                            Subpart A_General



Sec. 270.1  Purpose.

    The purpose of this part is to implement section 657 of the National 
Defense Authorization Act for Fiscal Year 1997 (Pub. L. 104-201), which 
authorizes the Secretary of Defense to make payments to persons who 
demonstrate to the satisfaction of the Secretary of Defense that the 
persons were captured and incarcerated by the Democratic Republic of 
Vietnam as a result of the participation by the persons in certain 
operations conducted by the Republic of Vietnam.



Sec. 270.2  Definitions.

    (a) Applicant. A person applying for payments under this part.
    (b) Child of an eligible person. A recognized natural child, an 
adopted child, or a stepchild who lived with the eligible person in a 
regular parent-child relationship.
    (c) Parents of an eligible person. Natural parents, adoptive 
parents, or step parents of a deceased person described in Part A of 
appendix A to this part. (Step parents must show that they established a 
parent-child relationship with the deceased person described in Part A 
of appendix A to this part.)
    (d) Siblings by blood of an eligible person. Siblings related by 
blood to a deceased person described in Part A of appendix A to this 
part, including half-brothers and half-sisters.
    (e) The Commission. The Commission authorized to oversee payments to 
certain persons captured and incarcerated

[[Page 638]]

by the Democratic Republic of Vietnam, established under this part.
    (f) Eligible person. A person determined by the Commission as 
eligible for payment under subpart C of this part.
    (g) OPLAN 34A. The operation carried out under the auspices of the 
government of South Vietnam and the U.S. Military Assistance Command 
Vietnam, Studies and Observations Group (MACV/SOG), starting in 1964, 
which inserted commandos into North Vietnam for the purpose of conducing 
intelligence and other military activities. OPLAN 34A also refers to 
predecessor operations which were precursors to OPLAN 34A operations. OP 
35 refers to the small military units which were sent to conduct 
sabotage, reconnaissance, exploitation and other intelligence missions 
on or around the borders of Vietnam and Laos.
    (h) North Vietnam. The Democratic Republic of Vietnam.
    (i) OSD. The Office of the Secretary of Defense.
    (j) The Secretary. The Assistant Secretary of Defense (Force 
Management Policy).
    (k) South Vietnam. The Republic of Vietnam.
    (l) Spouse of an eligible person. Someone who was married to that 
eligible person for at least 1 year immediately before the death of the 
eligible person.
    (m) Required declaration. The statements to be signed and notarized 
in appendix A to this part. All applicants must sign part C and either 
part A or part B of appendix A to this part.

[63 FR 3472, Jan. 23, 1998, as amended at 63 FR 68195, Dec. 10, 1998]



Sec. 270.3  Effective date.

    This part is effective on May 15, 1997.



                          Subpart B_Commission



Sec. 270.4  Membership.

    The Secretary shall establish within OSD a Commission that is 
composed of the following voting members: one representative from the 
Office of the Under Secretary of Defense for Personnel and Readiness, 
who shall be the chairman of the Commission, one representative from the 
Office of the Under Secretary of Defense for Policy, and one 
representative from each of the military departments. Members of the 
Commission may be either military or civilian and all members must 
possess, at a minimum, a Secret clearance.



Sec. 270.5  Staff.

    (a) The Commission will have a support staff, which will include 
staff members sufficient to expeditiously and efficiently process the 
applications for payments under this part. All members of the staff will 
possess, as a minimum, a Top Secret clearance because of the sensitive 
nature of the information that may require review in determining 
eligibility of claimants.
    (b) The Secretary will ensure that the Commission has all 
administrative support, including space, office and automated equipment 
and translation services, needed for the efficient and expeditious 
review and payment of claims. The Secretary may task appropriate 
Department of Defense elements to provide such support, either through 
assignment of personnel or the hiring of independent contractors.



           Subpart C_Standards and Verification of Eligibility



Sec. 270.6  Standards of eligibility.

    (a) A person is eligible for payments under this part if such 
person:
    (1) Was captured and incarcerated by North Vietnam as a result of 
his participation in operations conducted under OPLAN 34A or its 
predecessor operation; or
    (2) Served as a Vietnamese operative under OP 35, and was captured 
and incarcerated by North Vietnamese forces as a result of the 
participation by the person in operations in Laos or along the Lao-
Vietnamese border pursuant to OP 35, and
    (i) Was captured and incarcerated by the North Vietnamese, and 
remained in captivity after 1973 (or died in captivity) after 
participation in OP 35, and
    (ii) Has not previously received payment for the United States 
Government after 1972 from the period spent in captivity.
    (b) In the case of a decedent who would have been eligible for a 
payment

[[Page 639]]

under this part if alive, payment will be made to the survivors of the 
decedent in the following order:
    (1) To the surviving spouse of an eligible person; or
    (2) If there is no surviving spouse of an eligible person, to the 
surviving children of an eligible person, in equal shares; or
    (3) If there is no surviving spouse of an eligible person and no 
surviving children of an eligible person, to the surviving parents of an 
eligible person, in equal shares (step parents take equal shares the 
same as natural parents); or
    (4) If there is no surviving spouse of an eligible person, no 
surviving children of an eligible person, and no surviving parents of an 
eligible person, to the surviving siblings of an eligible person, in 
equal shares. (Half siblings take equal shares in the same manner as 
full siblings.)
    (c) A payment may not be made under this part to, or with respect 
to, a person who the Commission determines, based on the available 
evidence, served in the People's Army of North Vietnam or provided 
active assistance to the Government of North Vietnam or forces opposed 
to the Government of South Vietnam or the United States during any 
period from 1958 through 1975.
    (d) The Commission will make reasonable efforts to publicize the 
availability of payments involved in this procedure, using existing 
public affairs channels.

[63 FR 3472, Jan. 23, 1998, as amended at 63 FR 68195, Dec. 10, 1998]



Sec. 270.7  Verification of eligibility.

    (a) All persons applying for payment under this part shall first 
submit a properly completed, signed and notarized Application for 
Compensation of Vietnamese Commandos as set out in appendix A to this 
part, along will all corroborating documents and information required, 
to the Commission on Compensation, Office of the Secretary of Defense, 
4000 Defense Pentagon, Washington, D.C. 20301-4000. Submission of an 
Application for Compensation of Vietnamese Commandos without properly 
signed and notarized declarations will automatically render the 
application ineligible for consideration by the Commission for payment. 
All applicants must sign and have notarized the declarations in Part C 
of the Application for Compensation of Vietnamese Commandos. In 
addition, all applicants must sign and have notarized the declaration in 
either Part A or Part B of the Application for Compensation of 
Vietnamese Commandos. If portions of the Application for Compensation of 
Vietnamese Commandos are not completed, the Commission may draw adverse 
inferences from the portions left incomplete.
    (b) Staff Functions in the Verification of Eligibility Process. The 
Staff Director shall:
    (1) Establish a database for logging and tracking Applications for 
Compensation of Vietnamese Commandos throughout the claims process, 
including appellate actions and final payment or denial of claims.
    (2) Maintain a liaison with on-site personnel at the National 
Archives Center, College Park, Maryland, to organize and translate 
finance records for review.
    (3) Upon receipt of each Application for Compensation of Vietnamese 
Commandos, research cases to verify eligibility of claimant to include 
reviewing and analyzing existing records.
    (4) Forward applications (including support documentation) to other 
U.S. Government agencies as required (e.g., CIA, INS) for review of 
their records, as needed to acquire documentation that may aid in 
determining the eligibility of claimants to receive payments.
    (5) Present any information or comments resulting from the research 
and review of cases, plus any reasonably available and probative 
information, to the Commission with a recommendation on the eligibility 
of applicants.
    (6) If eligibility is favorably approved by the Commission, forward 
written requests to DFAS to effectuate payments.
    (7) Prepare notification letters, on behalf of the Commission, for 
forwarding to claimants notifying them of the final determination 
concerning approval or disapproval of their applications.

[[Page 640]]

    (8) In coordination with the Army Budget Office and OSD, determine 
appropriate fund cite that will be used for payments.
    (9) Assist in the preparation of required Reports to Congress.
    (10) Determine administrative budgetary support requirements and 
submit funding request to OSD.
    (11) Provide clerical and administrative support to the Commission.
    (12) Create and maintain a system of records to manage all 
information generated by the processing of Applications for Compensation 
of Vietnamese Commandos under this part and to create an administrative 
record of actions by the Commission. All information received or 
originated from other Departments and agencies of the U.S. government 
will be retained, stored, and further disseminated only in accordance 
with pertinent law (e.g., 5 U.S.C. section 552(FOIA) and 5 U.S.C. 
section 552a (Privacy Act)) and conditions set by those originating 
Departments and agencies.
    (c) Claims will be processed expeditiously. Within 18 months of 
actual receipt by the Commission of an Application for Compensation of 
Vietnamese Commandos, the Commission will determine the eligibility of 
the applicant. The standard for finding eligibility is whether the 
information reasonably available to the Commission indicates that the 
applicant is more likely than not to be eligible for a payment under 
this part. The burden of making a showing of eligibility shall be on the 
applicant. Upon determination of eligibility, the payment should be 
promptly accomplished.
    (d) Applicants may request to appear in person before the 
Commission, which will retain discretion whether to grant such requests. 
The Commission may request the personal appearance or interview of any 
applicant as a condition of further consideration of his or her 
application if such appearance would significantly aid the Commission in 
its determination. All appearances shall be at the expense of the 
applicant.



                            Subpart D_Payment



Sec. 270.8  Authorization of payment.

    Subject to the availability of appropriated funds, upon 
determination by the Commission of the eligibility of a person for 
payment, the Commission will authorize the Defense Finance and 
Accounting Service (DFAS) to make payments out of the funds appropriated 
for this purpose. Any payment authorized to a person under a legal 
disability, may, in the discretion of the Commission, be paid for the 
use of the person, to the natural or legal guardian, committee, 
conservator, or curator, or, if there is no such natural or legal 
guardian, committee, conservator, or curator, to any other person, 
including the spouse, children, parents, or siblings of such person, who 
the Commission determines is charged with the care of the person. The 
Commission will notify eligible persons of the process for 
disbursements.

[63 FR 3472, Jan. 23, 1998, as amended at 63 FR 68195, Dec. 10, 1998]



Sec. 270.9  Amount of payment.

    The amount payable to, or with respect to, an eligible person under 
this part is $40,000. If an eligible person can demonstrate to the 
satisfaction of the Commission that confinement or incarceration 
exceeded 20 years, the Commission may authorize payment of an additional 
$2,000 for each full year in excess of 20 (and a proportionate amount 
for a partial year), but the total amount paid to, or with respect to, 
an eligible person under this part may not exceed $50,000.



Sec. 270.10  Time limitations.

    To be eligible for payments under this part, applicants must file 
Applications for Compensation of Vietnamese Commandos with the 
Commission within 18 months of the effective date of these regulations, 
May 15, 1997.



Sec. 270.11  Limitation on disbursements.

    Notwithstanding any agreement (including a power of attorney) to the 
contrary, the Commission must disburse a payment under this part only to 
the person who is eligible for the

[[Page 641]]

payment, i.e., the commando, his surviving spouse, children, parents, or 
siblings. The Commission may, in its discretion, require the person who 
is eligible for the payment to appear at any designated Defense Finance 
Accounting Service disbursement office in the United States to receive 
payment. The Commission may, in its discretion, coordinate with other 
U.S. governmental agencies to facilitate disbursement of payments to 
persons eligible for payments who reside outside the United States. If 
an eligible person makes a written request that payment be made at an 
alternate location or in an alternate manner, the Commission may, in its 
discretion, grant such request, provided that the actual disbursement of 
the payment (i.e., the physical delivery of the payment) is made only to 
the eligible person. The Commission will not disburse payment to any 
person other than an eligible person, notwithstanding any written 
request, assignment of rights, power of attorney, or other agreement. In 
the case of an application authorized for payment but not disbursed as a 
result of the foregoing, the Secretary will hold the funds in trust for 
the person authorized to receive payment in an interest bearing account 
until such time as the person complies with the conditions for 
disbursement set out in this part.

[63 FR 3472, Jan. 23, 1998, as amended at 63 FR 68195, Dec. 10, 1998]



Sec. 270.12  Payment in full satisfaction of all claims against the 
United States.

    The acceptance of payment by, or with respect to, an eligible person 
under this part shall constitute full satisfaction of all claims by or 
on behalf of that person against the United States arising from the 
person's participation in operations under OPLAN 34A or OP35.



Sec. 270.13  No right to judicial review or legal cause of action.

    Subject to subpart E of this part, all determinations by the 
Commission pursuant to this part are final and conclusive, 
notwithstanding any other regulation. Applicants under this part have no 
right to judicial review, and such review is specifically precluded. 
This part does not create or acknowledge any legal right or obligation 
whatsoever.



Sec. 270.14  Limitation on attorneys fees.

    Notwithstanding any contract or agreement, the representative of a 
person authorized to receive payment under this part may not receive, 
for services rendered in connection with the claim of, or with respect 
to, a person under this part, more than 10 percent of a payment made 
under this part on such claim.



Sec. 270.15  Waiver of notary requirement.

    In exceptional circumstances (e.g., overseas claimant) the 
requirement for notarizations may be waived at the discretion of the 
Commission.



                       Subpart E_Appeal Procedures



Sec. 270.16  Notice of the Commission's determinations.

    Applicants whose claims for payment are denied in whole or in part 
by the Commission will be notified in writing of the determination. 
Applicants may petition the Assistant Secretary of Defense, Force 
Management Policy (or his designee) for a reconsideration of the 
Commission's determinations, and may submit any documentation in support 
of such petitions.



Sec. 270.17  Procedures for filing petitions for reconsideration.

    A request for reconsideration must be made to the Secretary, care of 
the Staff Director of the Commission at the address of the Commission 
set out in Sec. 270.7, within 45 days of receipt of the notice from the 
Commission of ineligibility. The Commission may waive that time limit 
for good cause shown.



Sec. 270.18  Action on reconsideration.

    (a) The Assistant Secretary of Defense, Force Management Policy (or 
his designee) will:
    (1) Review the Commission's administrative record of the original 
determination.
    (2) Review additional information or documentation submitted by the 
applicant to support his or her petition for reconsideration.

[[Page 642]]

    (3) Determine whether the decision of the Commission should be 
affirmed, modified, or reversed.
    (b) When there is a decision affirming the Commission's 
determinations, the Staff Director will notify the applicant in writing 
and include a statement of the reason for the affirmance.
    (c) A decision of affirmance shall constitute the final action of 
the Department of Defense. The Secretary (or his designee) may decline 
to consider any subsequent petitions for reconsideration.
    (d) When there is a decision modifying or reversing the Commission's 
determination, the notification should be immediately made to the Staff 
Director so as to implement the final action.



                      Subpart F_Reports to Congress



Sec. 270.19  Reports to Congress.

    Not later than September 23, 1998, the Commission will prepare and 
the Secretary will submit to Congress a report on the payment of claims 
under this part. Subsequent to that initial report, the Commission will 
prepare and the Secretary will submit to Congress annual reports on the 
status of payment of claims.

   Appendix A to Part 270--Application for Compensation of Vietnamese 
                                Commandos

    All persons applying for payment shall submit a properly completed, 
signed and notarized Application for Compensation of Vietnamese 
Commandos, along with corroborating documents and information, to: 
Commission on Compensation, Office of the Secretary of Defense, 4000 
Defense Pentagon, Washington, D.C. 20301-4000.
    All applicants must sign and have notarized the declaration in Part 
C of the application. In addition, all applicants must sign and have 
notarized the declaration in either Part A or Part B of the application 
(as applicable).
    Applicants must file applications within 18 months of the effective 
date of this part (15 May 1997): that is, not later than 15 November 
1998.
    Privacy Act Statement:


    Authority: National Defense Authorization Act for Fiscal Year 1997, 
Public Law 104-201, Section 657.

    Principal Purpose: To evaluate applications for cash payments for 
those individuals, or their surviving spouse, children, parents, or 
siblings, who were captured and incarcerated by North Vietnam as a 
result of participating in specified joint United States-South 
Vietnamese operations.
    Routine Uses: To the Immigration and Naturalization Service and the 
Central Intelligence Agency for purposes of verifying information 
relating to the claimant's eligibility for payment. To the Department of 
Justice for purposes of representing the Department of Defense in Au 
Dong Quy, et al./Lost Commandos v. The United States.
    Disclosure: Voluntary. However, if portions are not completed the 
Commission may draw adverse inferences from the incomplete portions.
    Social Security Number: Providing a social security number is 
voluntary. If one is not provided, the application for payment will 
still be processed.
    This application shall be executed by the person applying for 
eligibility, or his surviving spouse, children, parents, or siblings, or 
designated representatives of such persons.
    Part A--Complete the following information on the person whose 
status as a former operative is the basis for applying for payment:
(1) Current legal name or legal name at death:

________________________________________________________________________

 (a) Aliases:___________________________________________________________

    (b) Former, or other legal names used:

________________________________________________________________________
(2) Current address or last address prior to death:

________________________________________________________________________

________________________________________________________________________

(3) Mailing address for compensation check in the event compensation is 
          approved (may be different from commando's current/last 
          address):

________________________________________________________________________

________________________________________________________________________

(4) Telephone Number(s):________________________________________________
(5) Identification Numbers:
    (a) U.S. Social Security Number (optional):

________________________________________________________________________

    (b) U.S. Immigration & Naturalization Service (INS) Number:

________________________________________________________________________

    (c) Vietnamese Identification Card Number:

________________________________________________________________________

(6) Date of Birth:______________________________________________________

(7) Place of Birth:_____________________________________________________

(8) Distinguishing marks (e.g., scars):

________________________________________________________________________

(9) Family Identification:
    (a) Parents:

 Father:________________________________________________________________


[[Page 643]]

________________________________________________________________________
 Mother:________________________________________________________________

 (b) Spouse:____________________________________________________________

 (c) Children:__________________________________________________________

________________________________________________________________________

 (d) Brothers:__________________________________________________________

 (e) Sisters:___________________________________________________________

 (f) Others:____________________________________________________________

(10) Team name:_________________________________________________________

(11) Team role/duties (e.g., team leader, radioman):

________________________________________________________________________

(12) Place of insertion:________________________________________________

(13) Method of insertion (e.g., parachute, boat):

________________________________________________________________________

(14) Date of insertion:_________________________________________________

(15) Date and place of capture:

________________________________________________________________________

(16) Detailed Record of confinement:

 First Prison Name:_____________________________________________________

 Date Arrived:__________________________________________________________

 Next Prison Name:______________________________________________________

 Date Transferred:______________________________________________________

 Next Prison Name:______________________________________________________

 Date Transferred:______________________________________________________

 Next Prison Name:______________________________________________________

 Date Transferred:______________________________________________________

 Next Prison Name:______________________________________________________

 Date Transferred:______________________________________________________

 Next Prison Name:______________________________________________________

 Date Transferred:______________________________________________________

 Next Prison Name:______________________________________________________

 Date Transferred:______________________________________________________

    Date of Final Release from Confinement:

________________________________________________________________________

    Name of Prison/Camp/Location of Final Release:

________________________________________________________________________

(17) Name, address, and telephone number of counsel or attorney (if 
          any):

________________________________________________________________________

________________________________________________________________________

(18) Required Declaration only for commandos filing on their own behalf 
          (complete the applicable declaration, 34A or 35--not both):

  For OPLAN 34A or Predecessor Operations (Missions Into North Vietnam)

    I served pursuant to OPLAN 34A or its predecessor operation and was 
captured and imprisoned by North Vietnam as a result of those 
activities. I did not serve in the People's Army of Vietnam or provide 
active assistance to the Government of the Democratic Republic of 
Vietnam (North Vietnam). I did not serve in or provide active assistance 
to forces opposed to the Government of the Republic of Vietnam (South 
Vietnam) or forces opposed to the United States during the period from 
1958 through 1975. I declare under penalty of perjury under the laws of 
the United States of America that the foregoing is true and correct.

Signature:______________________________________________________________

Date:___________________________________________________________________
Sworn to and subscribed before me on

________________________________________________________________________
(Date)

Notary Public:__________________________________________________________

Date:___________________________________________________________________
My commission expires on

________________________________________________________________________
(Date)

 For OP 35 Operations (Missions Into Laos or Along the Viet-Lao Border)

    I served as a Vietnamese operative pursuant to OP 35, and was 
captured and imprisoned by North Vietnam as a result of my participation 
in operations in Laos or along the Lao-Vietnamese border under the 
direction of OP 35. I did not serve in the People's Army of Vietnam or 
provide active assistance to the Government of the Democratic Republic 
of Vietnam (North Vietnam). I did not serve in or provide active 
assistance to forces opposed to the Government of the Republic of 
Vietnam (South Vietnam) or forces opposed to the United States during 
the period from 1958 through 1975. I have not previously received 
payment from the United States Government as compensation for the period 
of captivity. I remained in captivity after 1973. I declare under 
penalty of perjury under the laws of the United States of America that 
the foregoing is true and correct.

Signature:______________________________________________________________

Date:___________________________________________________________________
Sworn to and subscribed before me on

________________________________________________________________________
(Date)

Notary Public:__________________________________________________________

Date:___________________________________________________________________
My commission expires on

________________________________________________________________________
(Date)
    Part B--In addition to PART A, above, any applicant who is a 
surviving spouse, child, parent, or sibling by blood of a deceased 
commando must complete Part B, below, with information on themselves.
(1) Current Legal name:

________________________________________________________________________

(a) Aliases:____________________________________________________________
    (b) Former, or other names used:

________________________________________________________________________

(2) Current Address:____________________________________________________

________________________________________________________________________


[[Page 644]]

________________________________________________________________________
(3) Telephone Number(s):________________________________________________
(4) Identification Numbers:
    (a) U.S. Social Security Number (optional):
________________________________________________________________________

    (b) U.S. Immigration and Naturalization Service (INS) Number:
________________________________________________________________________

    (c) Vietnamese Identification Card Number:
________________________________________________________________________

(5) Date of birth:______________________________________________________

(6) Place of birth:_____________________________________________________

(7) Relationship to deceased person:____________________________________
(8) Date and place of marriage (if surviving spouse):

________________________________________________________________________

________________________________________________________________________
(9) If you are a surviving child and there is no surviving spouse, list 
          the names and addresses of all other children of the deceased 
          person, including all recognized natural children, step-
          children who lived with the deceased person, and adopted 
          children. Provide the date of death for any who are deceased.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
(10) If you are a surviving parent, the deceased person described in 
          PART A has no surviving spouse or children, list the name and 
          address of the other parent of the deceased person.
(11) If you are a surviving sibling, the deceased person described in 
          Part A has no surviving spouse, children, or parents, list the 
          names and addresses of all other siblings of the deceased 
          person, including half-brothers or half-sisters. Provide the 
          date of death for any who are deceased.
(12) Name, address, and telephone number of counsel/attorney (if any):

________________________________________________________________________

________________________________________________________________________
(13) Required Declaration (Note: If Commando is deceased, applicant must 
          sign one of the two following declarations here and part C, 
          below):

  For Surviving Spouse, Child, Parent, or Sibling of Deceased Commando 
    (OPLAN 34A or Predecessor Operations-Missions Into North Vietnam)

    To the best of my information, knowledge, and belief, my deceased 
family member served pursuant to OPLAN 34A or its predecessor operation 
and was captured and imprisoned by North Vietnam as a result of those 
activities. He did not serve in the People's Army of Vietnam or provide 
active assistance to the Government of the Democratic Republic of 
Vietnam (North Vietnam). He did not serve in or provide active 
assistance to forces opposed to the Government of the Republic of 
Vietnam (South Vietnam) or forces opposed to the United States during 
the period from 1958 through 1975. I declare under penalty of perjury 
under the laws of the United States of America that the foregoing is 
true and correct.

Signature:______________________________________________________________

Date:___________________________________________________________________
Sworn to and subscribed before me on

________________________________________________________________________
(Date)

Notary Public:__________________________________________________________

Date:___________________________________________________________________
My commission expires on

________________________________________________________________________
(Date)

For Surviving Spouse, Child, Parent, or Sibling of Deceased Commando (OP 
        35 Units-Missions Into Laos or Along the Viet-Lao Border)

    To the best of my information, knowledge, and belief, my deceased 
family member served as a Vietnamese operative pursuant to OP 35, and 
was captured and imprisoned by North Vietnam as a result of his 
participation in operations in Laos or along the Lao-Vietnamese border 
under the direction of OP 35. He did not serve in the People's Army of 
Vietnam or provide active assistance to the Government of the Democratic 
Republic of Vietnam (North Vietnam). He did not serve in or provide 
active assistance to forces opposed to the Government of the Republic of 
Vietnam (South Vietnam) or forces opposed to the United States during 
the period from 1958 through 1975. He did not previously receive payment 
from the United States Government as compensation for the period of 
captivity. He remained in captivity after 1973. I declare under penalty 
of perjury under the laws of the United States of America that the 
foregoing is true and correct.

Signature:______________________________________________________________

Date:___________________________________________________________________
Sworn to and subscribed before me on

________________________________________________________________________
(Date)

Notary Public:__________________________________________________________

Date:___________________________________________________________________
My commission expires on

________________________________________________________________________
(Date)

    Part C--Required Documents:
    All documents submitted in support of an application for payment 
should be originals when possible, or copies of the originals certified 
by the official custodian of the documents. If certified copies cannot 
be obtained, uncertified copies should be submitted. If

[[Page 645]]

uncertified copies cannot be obtained, submit sworn affidavits from two 
or more persons who have personal knowledge of the information sought.

     For the Commando/Operative (Person Described in Part A, Above)

    (1) Identification. A document with his current legal name and 
address (or legal name and address at death if deceased).
    (2) Two or more sworn affidavits from individuals having personal 
knowledge of the person's identity (these should be submitted in 
addition to the document with current name and address).
    (3) One document of date of birth. A birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (4) One document of name change, if the person's current legal name 
is not the same as when he was sent on the OPLAN 34A or OP 35 missions.
    (5) One document of evidence of guardianship. This is only required 
if you are executing this document as the guardian of the person 
identified in Part A. If you are a legally-appointed guardian, submit a 
certificate executed by the proper official of the court appointment. If 
you are not such a legally-appointed guardian, submit an affidavit 
describing your relationship to the person and the extent to which you 
are responsible for the care of the person, or your position as an 
officer of the institution in which the person is institutionalized.
    (6) One document of evidence of imprisonment. This should be a 
document issued by the government of North Vietnam showing the dates of 
the person's imprisonment.
    (7) Any documents of evidence of participation in covered 
operations. These documents should be contracts, orders, or other 
operational documentation corroborating participation in clandestine 
operations under OPLAN 34A (or its predecessor) or OP 35.

 For a Surviving Spouse, Child, Parent, or Sibling of a Deceased Person 
                       Described in Part A, Above

    In addition to documents (1) through (7) above concerning the 
deceased person described in Part A, submit the following:
    (8) One of the following documents as evidence of the Commando's 
death:
    (a) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of death;
    (c) A statement of the funeral director or attending physician or 
intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (e) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    (f) If you cannot obtain any of the above evidence of the commando/
operative's death, you must submit other convincing evidence, such as 
signed sworn statements of two or more persons with personal knowledge 
of the death, giving the place, date, and cause of death.
    (g) If you are submitting an application as a surviving spouse, 
submit another document of the same type as evidence of the Commando's 
spouse's death.

      For the Spouse of a Deceased Person Described in Part A Above

    In addition to documents described in Part C items (1) through (8), 
above, each surviving spouse should submit the following:
    (9) One of the following documents as evidence of your marriage to 
the deceased person:
    (a) A copy of the public records of marriage, certified or attested, 
or an abstract of the public records, containing sufficient information 
to identify the parties, the date and place of marriage, and the number 
of prior marriages by either party if shown on the official record, 
issued by the officer having custody of the record or other public 
official authorized to certify the record, or a certified copy of the 
religious record of marriage;
    (b) An official report from a public agency as to a marriage which 
occurred while the deceased person was employed by such agency;
    (c) An affidavit of the clergyman or magistrate who officiated;
    (d) The certified copy of a certificate of marriage attested to by 
the custodian of the records;
    (e) The affidavits of two or more eyewitnesses to the ceremony; or
    (f) In jurisdictions where ``common law'' marriages are recognized, 
an affidavit by the surviving spouse setting forth all of the facts and 
circumstances concerning the alleged marriage, such as the agreement 
between the parties at the beginning of their cohabitation, places and 
dates of residences, and whether children were born as the result of the 
relationship. This evidence should be supplemented by affidavits from 
two or more persons who know as the result of personal observation the 
reputed relationship which existed between the parties to the alleged 
marriage, including the period of cohabitation, places of residences, 
whether the parties held themselves out as husband and wife and whether 
they were generally accepted as such in the communities in which they 
lived.
    (g) If you cannot obtain any of the above evidence of your marriage, 
you must submit

[[Page 646]]

any other evidence that would reasonably support a belief that a valid 
marriage actually existed.
    (10) In addition, submit the following documents about ourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A birth certificate, or if 
unavailable, other proof of birth (e.g. passport).
    (c) One document of name change. If your current legal name is the 
same as that during the marriage, this section does not apply. Spouses 
whose current legal name is different than that used when married should 
submit a document or affidavits to corroborate the name change.
    (d) One document of evidence of guardianship. If you are executing 
this document as the guardian of the spouse, you must submit evidence of 
your authority. If you are a legally-appointed guardian, submit a 
certificate executed by the proper official of the court appointment. If 
you are not such a legally-appointed guardian, submit an affidavit 
describing your relationship to the spouse and the extent to which you 
are responsible for the care of the spouse or your position as an 
officer of the institution in which the spouse is institutionalized.

                       For the Surviving Children

    In addition to documents described in Part C items (1) through (8), 
above, each surviving child should submit the following:
    (11) One document as evidence of your relationship to your parent 
(the deceased person described in Part A, above), as follows:
    If A Natural Child:
    (a) Birth certificate showing that the deceased person was your 
parent.
    (b) If the birth certificate does not show the deceased person as 
your parent, a certified copy of:
    (i) An acknowledgment in writing signed by the deceased person;
    (ii) A judicial decree ordering the deceased person to contribute to 
your support;
    (iii) The public record of birth or a religious record showing that 
the deceased person was named as your parent;
    (iv) Affidavit of a person who knows that the deceased person 
accepted you as his child; or
    (v) Public records, such as records of school or welfare agencies, 
which show that with the deceased person's knowledge, the deceased 
individual was named as your parent.
    If An Adopted Child:
    An adopted child must submit a certified copy of the decree of 
adoption.
    If a Step-Child:
    Submit all three of the following documents as evidence of the step-
child relationship:
    (a) One document as evidence of birth to the spouse of the deceased 
person, or other evidence that reasonably supports the existence of a 
parent-child relationship between you and the spouse of the deceased 
person;
    (b) One document as evidence that you were either living with or in 
a parent-child relationship with the deceased person at the time of his 
death; and
    (c) One document as evidence of the marriage of the deceased person 
and the spouse, such as a certified copy of the record of marriage, or 
an abstract of the public records containing sufficient information to 
identify the parties and the date and place of marriage issued by the 
officer having custody of the record, or a certified copy of a religious 
record of marriage.
    (12) In addition, submit the following documents about yourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identify (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A Birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (c) One document of name change. If your current legal name is the 
same as that shown on documents attesting to your birth, this section 
does not apply. Persons whose current legal name is different than that 
used on such documents should submit a document or affidavit to 
corroborate the name change.
    (d) One document of evidence of guardianship. If you are executing 
this document as the guardian of the person identified as a surviving 
child of a deceased person, you must submit evidence of your authority. 
If you are a legally-appointed guardian, submit a certificate executed 
by the proper official of the court appointment. If you are not such a 
legally-appointed guardian, submit an affidavit describing your 
relationship to the child and the extent to which you are responsible 
for the care of the child, or your position as an officer of the 
institution in which the child is institutionalized.
    Read the following statement carefully before signing this document. 
A false statement may be grounds for punishment by fine or imprisonment 
or both. This sworn declaration must accompany all documents submitted 
to the Commission, whether with or separate from the application.

                        For the Surviving Parent

    In addition to documents described in Part C items (1) through (8), 
above, each surviving parent should submit the following:

[[Page 647]]

    (13) An affidavit certifying that the deceased individual described 
in Part A, above, has no surviving spouse.
    (a) In addition to the above affidavit, if the individual described 
in Part A, above, was divorced at the time of his death, a copy of the 
divorce decree from his spouse shall be submitted as additional proof 
that he has no surviving spouse.
    (b) In addition to the above affidavit, if the individual described 
in Part A, above, had been married at some point prior to his death, and 
his spouse pre-deceased him, one of the following documents as evidence 
of the death of the spouse of the individual described in Part A, above, 
shall be submitted as additional proof that he has no surviving spouse:
    (i) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (ii) A certificate by the custodian of the public record of death;
    (iii) A statement of the funeral director or attending physician or 
intern of the institution where death occurred;
    (iv) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (v) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    (vi) If you cannot obtain any of the above evidence of death of the 
spouse of the deceased individual described in Part A, above, you must 
submit other convincing evidence, such as signed sworn statements of two 
or more persons with personal knowledge of the death, giving the place, 
date, and cause of death.
    (14) One of the following documents as evidence of the death of all 
of the children (if any), of the deceased individual described in Part 
A, above:
    (a) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of death;
    (c) A statement of the funeral director are attending physician or 
intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (e) If death occurred o8tside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    (f) If you cannot obtain any of the above evidence of death of all 
of the children of the deceased individual described in Part A, above, 
you must submit other convincing evidence, such as signed sworn 
statements of two or more persons with personal knowledge of the death, 
giving the place, date, and cause of death.
    (15) One document as evidence of your relationship to your child 
(the deceased person described in Part A, above), as follows:
    If a Natural Parent:
    (a) Birth certificate showing that the deceased person was your 
child.
    (b) If the birth certificate does not show the deceased person as 
your child, a certified copy of:
    (i) An acknowledgement in writing signed by the deceased person;
    (ii) The public record of birth or a religious record showing that 
the deceased person was named as your child.
    (iii) Public records, such as records of school or welfare agencies, 
which show that the deceased individual was named as your child; or
    (iv) Other convincing evidence, such as signed, sworn statements of 
two or more persons who know that the deceased person was your child.
    If An Adoptive Parent:
    An adoptive parent must submit a certified copy of the decree of 
adoption. If the adoption took place outside of the United States and 
there is no decree of adoption, other convincing evidence must be 
submitted, such as signed, sworn statements of two or more persons with 
personal knowledge of the adoptive relationship, or a government 
official who can attest to the adoptive relationship.
    If a Step-Parent:
    Submit all three of the following documents as evidence of the step-
parent relationship:
    (a) One document as evidence of birth of the deceased person to the 
natural parent, or other convincing evidence that reasonably supports 
the existence of a parent-child relationship between the deceased person 
and the natural parent (see ``If a Natural Parent,'' above).
    (b) One document as evidence that you had established a parent-child 
relationship with the deceased person; and
    (c) One of the following documents as evidence that you were married 
to the natural parent of the deceased person:
    (i) A copy of the public records of marriage, certified or attested, 
or an abstract of the public records, containing sufficient information 
to identify the parties, the date and place of marriage, and the number 
of prior marriages by either party if shown on the official record, 
issued by the officer having custody of the record or other public 
official authorized to certify the record, or a certified copy of the 
religious record of marriage;

[[Page 648]]

    (ii) An official report from a public agency as to a marriage which 
occurred while either parent was employed by such agency;
    (iii) An affidavit of the clergyman or magistrate who officiated;
    (iv) The certified copy of a certificate of marriage attested to by 
the custodian of the records;
    (v) The affidavits of two or more eyewitnesses to the ceremony; or
    (vi) In jurisdictions where ``common law'' marriages are recognized, 
an affidavit by the parent setting forth all of the facts and 
circumstances concerning the alleged marriage, such as the agreement 
between the parties at the beginning of their cohabitation, places and 
dates of residences, and whether children were born as the result of the 
relationship. This evidence should be supplemented by affidavits from 
two or more persons who know as a result of personal observation the 
reputed relationship which existed between the parties to the alleged 
marriage, including the period of cohabitation, places of residences, 
whether the parties held themselves out as husband and wife and whether 
they were generally accepted as such in the communities in which they 
lived.
    (vii) If you cannot obtain any of the above evidence of your 
marriage to the natural parent, you must submit any other evidence that 
would reasonably support a belief that a valid marriage actually 
existed.
    (16) In addition, submit the following documents about yourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A Birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (c) One document of name change. If your current legal name is the 
same as that shown on documents attesting to your birth, this section 
does not apply. Persons whose current legal name is different than that 
used on such documents should submit a document or affidavit to 
corroborate the name change.
    (d) One document of evidence of guardianship. If you are executing 
this document as the guardian of the person identified as a surviving 
parent of the deceased person described in Part A, above, you must 
submit evidence of your authority. If you are a legally-appointed 
guardian, submit a certificate executed by the proper official of the 
court appointment. If you are not such a legally-appointed guardian, 
submit an affidavit describing your relationship to the parent and the 
extent to which you are responsible for the care of the parent, or your 
position as an officer of the institution in which the parent is 
institutionalized.

                   For the Surviving Sibling by Blood

    In addition to documents described in Part C items (1) through (8), 
above, each surviving sibling by blood should submit the following:
    (17) An affidavit certifying that the deceased individual described 
in Part A, above, has no surviving spouse.
    (a) In addition to the above affidavit, If the individual described 
in Part A, above, was divorced at the time of his death, a copy of the 
divorce decree from his spouse shall be submitted as additional proof 
that he has no surviving spouse.
    (b) In addition to the above affidavit, If the individual described 
in Part A, above, had been married at some point prior to his death, and 
his spouse pre-deceased him, one of the following documents as evidence 
of the death of the spouse of the deceased individual described in Part 
A, above, shall be submitted as additional proof that he has no 
surviving spouse:
    (i) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (ii) A certificate by the custodian of the public record of death;
    (iii) A statement of the funeral director or attending physician or 
intern of the institution where death occurred;
    (iv) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (v) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    (vi) If you cannot obtain any of the above evidence of death of the 
spouse of the deceased individual described in Part A, above, you must 
submit other convincing evidence, such as signed sworn statements of two 
or more persons with personal knowledge of the death, giving the place, 
date, and cause of death.
    (18) One of the following documents as evidence of the death of all 
of the children (if any), of the deceased individual described in Part 
A, above:
    (a) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of death;
    (c) A statement of the funeral director or attending physician or 
intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (e) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of

[[Page 649]]

the State Department, or a copy of public record of death in the foreign 
country.
    (f) If you cannot obtain any of the above evidence of death of the 
children of the deceased individual described in Part A, above, you must 
submit other convincing evidence, such as signed sworn statements of two 
or more persons with personal knowledge of the death, giving the place, 
date, and cause of death.
    (19) One of the following documents as evidence of the death of the 
parents of the deceased in individual described in Part A, above:
    (a) A certified copy of extract from the public records of death, 
coroner's report of death, or verdict of a coroner's jury;
    (b) A certificate by the custodian of the public record of death;
    (c) A statement of the funeral director or attending physician or 
intern of the institution where death occurred;
    (d) A certified copy, or extract from an official report or finding 
of death made by an agency or department of the United States 
government; or
    (e) If death occurred outside the United States, an official report 
of death by a United States Consul or other employee of the State 
Department, or a copy of public record of death in the foreign country.
    (f) If you cannot obtain any of the above evidence of death of the 
parents of the deceased individual described in Part A, above, you must 
submit other convincing evidence, such as signed sworn statements of two 
or more persons with personal knowledge of the death, giving the place, 
date, and cause of death.
    Each surviving sibling should submit the following:
    (20) One document as evidence of your relationship to your sibling 
(the deceased individual described in Part A, above), as follows:
    (a) Birth certificate showing that at least one of your deceased 
parents was also the natural parent of the deceased person described in 
Part A, above;
    (b) If the birth certificate does not show the deceased individual 
described in Part A, above, as your sibling, a certified copy of:
    (i) An acknowledgement in writing signed by the deceased person;
    (ii) The public record of birth or a religious record showing that 
the deceased person was named as your sibling.
    (iii) Affidavit of a person who knows that the deceased person was 
your sibling; or
    (iv) Public records, such as records of school or welfare agencies, 
which show that the deceased individual was named as your sibling.
    (v) If you cannot obtain any of the above evidence of your sibling 
relationship to the deceased individual described in Part A, above, you 
must submit any other evidence that would reasonably support a belief 
that a valid sibling relationship actually existed.
    (21) In addition, submit the following documents about yourself:
    (a) Identification. A document with your current legal name and 
address plus two or more sworn affidavits from individuals having 
personal knowledge of your identity (these should be submitted in 
addition to the document with current name and address).
    (b) One document of date of birth. A Birth certificate, or if 
unavailable, other proof of birth (e.g., passport).
    (c) One document of name change. If your current legal name is the 
same as that shown on documents attesting to your birth, this section 
does not apply. Persons whose current legal name is different than that 
used on such documents should submit a document or affidavit to 
corroborate the name change.
    (d) One document of evidence of guardianship. If you are executing 
this document as the guardian of the person identified as a surviving 
sibling by blood of the deceased individual described in Part A, above, 
you must submit evidence of your authority. If you are a legally-
appointed guardian, submit a certificate executed by the proper official 
of the court appointment. If you are not such a legally-appointed 
guardian, submit an affidavit describing your relationship to the 
sibling and the extent to which you are responsible for the care of the 
sibling, or your position as an officer of the institution in which the 
sibling is institutionalized.

                           For All Applicants

    I declare under penalty of perjury under the laws of the United 
States of America that the foregoing documents provided in Part C are 
true and correct.

Signature:______________________________________________________________

Date:___________________________________________________________________

Sowrn to and subscribed before me on

________________________________________________________________________
(Date)

Notary Public:__________________________________________________________

Date:___________________________________________________________________

My commission expires on

________________________________________________________________________
(Date)

[63 FR 3472, Jan. 23, 1998, as amended at 63 68195, Dec. 10, 1998]



PART 271_OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS--Table of 
Contents




Sec.
271.1 Purpose and applicability.
271.2 Policy.
271.3 Procedures.

[[Page 650]]

271.4 Reports.

    Authority: 12 U.S.C. 3401 et seq.

    Source: 46 FR 880, Jan. 5, 1981, unless otherwise noted. 
Redesignated at 56 FR 64482, Dec. 10, 1991.



Sec. 271.1  Purpose and applicability.

    (a) This part establishes procedures for the National Security 
Agency/Central Security Service (NSA/CSS) to obtain records from 
financial institutions and implements 12 U.S.C. 3401-3422, 92 Stat. 3697 
(Pub. L. 95-630).
    (b) The provisions of this part apply only to financial records 
maintained by any office of a bank, savings bank, credit card issuer, 
industrial loan company, trust company, savings and loan, building and 
loan, homestead association (including cooperative banks), credit union, 
or consumer finance institution that is located in any district, state 
or territory of the United States.
    (c) All NSA/CSS elements are subject to the provisions of this part.



Sec. 271.2  Policy.

    (a) Financial records shall be sought regarding any individual who 
is an applicant for employment with the NSA/CSS or who has a current 
security clearance and/or access granted by the NSA/CSS, and regarding 
any other individual assigned or detailed to the NSA/CSS when such 
records are relevant to a final determination with respect to 
employment, continued assignment or detail, clearance, access or other 
related actions.
    (b) The NSA/CSS shall seek the consent of an individual when 
obtaining that individual's financial records from a financial 
institution. Refusal of an individual to provide such consent may be 
grounds for denying access to all Sensitive Compartmented Information 
(SCI) and to other classified information in NSA/CSS custody if the 
circumstances of such refusal or the nature of the records sought 
prevent the NSA/CSS from determining that such access is or would be 
clearly consistent with the national security.
    (c) Any actions relative to obtaining financial records without an 
individual's consent shall be conducted in accordance with the 
provisions of DoD Directive 5400.12, found in 32 CFR part 275, as 
appropriate.

[46 FR 880, Jan. 5, 1981. Redesignated and amended at 56 FR 64482, Dec. 
10, 1991]



Sec. 271.3  Procedures.

    (a) Representatives of NSA/CSS Security shall use a consent form as 
set out in Enclosure 2 of 32 CFR part 275, relative to obtaining 
financial records. A copy of the consent form shall be made a part of 
the individual's NSA/CSS security file, and an additional record copy of 
the form kept be security for the purpose of an annual report. A 
certification form as set out in Enclosure 4 of 32 CFR part 275 shall be 
provided to financial institutions by security representatives along 
with the consent form certifying compliance with 12 U.S.C. 3401 et seq.
    (b) Procedures used by security regarding matters referenced in 
paragraph (a) of this section, shall be established on a case-by-case 
basis and shall be in consonance with the appropriate provisions of 32 
CFR part 275.
    (c) Financial records obtained under 12 U.S.C. 3401 et seq. shall be 
marked: ``This record was obtained pursuant to the Right to Financial 
Privacy Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred 
to another federal agency or department without prior compliance with 
the transferring requirements of 12 U.S.C. 3412.'' Except in accordance 
with paragraph (e) of this section such records shall not be transferred 
to another agency or department outside the Department of Defense unless 
the Chief, Security, or delegate certifies in writing that there is 
reason to believe that the records are relevant to a legitimate law 
enforcement inquiry within the jurisdiction of the receiving agency or 
department. Such certificates shall be maintained in the appropriate 
NSA/CSS security file with copies of the released records.
    (d) Unless alternate procedures are involved as referenced in 
paragraph (b) of this section, when financial rec ords have been 
transferred to another agency, a security representative shall, within 
14 days, personally serve or mail to the individual whose records have 
been transferred, at his or her last known address, a copy of the 
certificate required by paragraph (c) of this

[[Page 651]]

section, and the following notice: ``Copies of or information contained 
in your financial records lawfully in possession of the NSA/CSS have 
been furnished to (name of agency) pursuant to the Right to Financial 
Privacy Act of 1978 for the following purpose(s): (state reason). If you 
believe that this transfer has not been made to further a legitimate law 
enforcement inquiry, you may have legal rights under the Financial 
Privacy Act of 1978 or the Privacy Act of 1974.''
    (e) In cases where another federal agency authorized to conduct 
foreign intelligence or foreign counterintelligence activities requests 
a financial record held by the NSA/CSS, and makes such a request for the 
purpose of conducting that Agency's protective functions, the NSA/CSS 
may release the information without notifying the individual to whom the 
financial record pertains.

[46 FR 880, Jan. 5, 1981. Redesignated and amended at 56 FR 64482, Dec. 
10, 1991]



Sec. 271.4  Reports.

    Security shall compile an annual report setting forth the data 
required in the Right to Financial Privacy Act of 1978. The report shall 
be submitted to the Defense Privacy Board, Office of the Deputy 
Assistant Secretary of Defense (Administration), by 15 February 
annually, and shall be assigned the Report Control Symbol DD-COMP(A) of 
1538.



PART 272_ADMINISTRATION AND SUPPORT OF BASIC RESEARCH BY THE DoD
--Table of Contents




Sec.
272.1 Purpose.
272.2 Definition of basic research.
272.3 Background.
272.4 Principles.
272.5 Policy.
272.6 Implementation.

    Authority: Secs. 2202, 2301-2314, 70A Stat. 127-133; secs. 1-3, 72 
Stat. 1793; 5 U.S.C. 301; 10 U.S.C. 2202, 2301-2314, 42 U.S.C. 1891-
1893; E.O. 10521 (19 FR 1499, as amended by sec. 6(b), E.O. 10807, 24 FR 
1899.

    Source: 26 FR 11831, Dec. 9, 1961, unless otherwise noted.



Sec. 272.1  Purpose.

    This part states the policy of the Department of Defense on the 
administration and support of basic research.



Sec. 272.2  Definition of basic research.

    Basic research is that type of research which is directed toward 
increase of knowledge in science. It is research where the primary aim 
of the investigator is a fuller understanding of the subject under 
study.



Sec. 272.3  Background.

    (a) E.O. 10521, as amended, ``Administration of Scientific Research 
by Agencies of the Federal Government,'' (19 FR 1499) provides broad 
guidelines for administration of basic scientific research by Federal 
agencies. These guidelines state that while the National Science 
Foundation shall be increasingly responsible for providing Federal 
support for general purpose basic research, the conduct and support by 
other Federal agencies of basic research in areas which are closely 
related to their missions is recognized as important and desirable and 
shall continue.
    (b) The Director of Defense Research and Engineering is responsible 
to the Secretary of Defense for the review and direction of the basic 
research program of the military departments and other agencies of the 
Department of Defense authorized to conduct or support basic research, 
and shall ensure that this program is executed according to the 
provisions of E.O. 10521. This review will be of maximum effectiveness 
if all elements of the Department adhere to the same fundamental 
principles in their conduct and support of basic research.



Sec. 272.4  Principles.

    (a) Basic research is essential to the development of military 
power.
    (b) Continuity is essential to successful basic research. Therefore, 
long-term planning and funding of basic research will be employed to the 
maximum possible extent.
    (c) Basic research may be conducted by competent scientists in 
universities and non-profit institutions, industry, military 
laboratories, or elsewhere.

[[Page 652]]

    (d) Sustained support of basic research will result in increased 
effectiveness and economies in military programs.
    (e) Free and effective communication among scientists is important 
to basic research.



Sec. 272.5  Policy.

    (a) It is the policy of the Department of Defense:
    (1) To conduct and support a broad and continuing basic research 
program to provide fundamental knowledge, with emphasis on that related 
to the needs of the Department of Defense; and
    (2) To assure full utilization of our scientific resources and to 
extend those resources in those areas of science relevant to the mission 
of the Department of Defense; and
    (3) To maintain, through such a program, effective communication 
among the scientists of the Department of Defense and the scientists of 
the universities and industry; and
    (4) To coordinate this program of basic research with the National 
Science Foundation; and
    (5) To encourage the support of basic research by other government 
and private agencies.



Sec. 272.6  Implementation.

    (a) It is the responsibility of the Director of Defense Research and 
Engineering to produce, on a continuing basis, a sound basic research 
program through the coordination and integration of the elements of the 
program among the military departments and other agencies of the 
Department of Defense authorized to conduct or support basic research.
    (b) The Department of Defense provides support of basic research by:
    (1) Support of in-house laboratories. Basic research in laboratories 
of the Department of Defense or in laboratories of other government 
agencies, best qualified for such work in particular areas, should be 
encouraged.
    (2) Grants to and contracts with educational and nonprofit 
institutions. In situations appropriate for grants under the provisions 
of part 273, of this chapter the grant instrument is the preferred 
method of supporting basic research by educational and other non-profit 
institutions.
    (3) Contract with industry. Contracts specifically for basic 
research may be made with industrial contractors (including small 
businesses) which have a recognized special competence in a given area. 
In the administration of the provisions of part 15 of this chapter, 
which relate to the allowability of a contractor's independent research 
costs under certain Department of Defense contracts, favorable 
consideration should be given to independent basic research.
    (c) The military departments and other agencies of the Department of 
Defense authorized to conduct or support basic research will provide the 
Director of Defense Research and Engineering with such information as he 
may require in order to carry out his responsibilities under this part, 
including annual reports through established administrative and fiscal 
channels of the following, by contract or grant and dollar value:
    (1) Basic research performed in government laboratories.
    (2) Basic research grants to educational and nonprofit institutions.
    (3) Basic research contracts to educational and nonprofit 
institutions.
    (4) Basic research contracts to industrial contractors, including 
small business.
    (5) Independent basic research recognized as an allowable cost in an 
advance agreement under the provisions of part 15 of this chapter. Such 
costs shall be reported via the Assistant Secretary of Defense 
(Installations and Logistics).



PART 274_REGULATIONS GOVERNING COMPETITIVE BIDDING ON U.S. GOVERNMENT 
GUARANTEED MILITARY EXPORT LOAN AGREEMENTS--Table of Contents




Sec.
274.1 Purpose.
274.2 Definitions.
274.3 Public notice.
274.4 U.S. guaranty.
274.5 Notice of intent to bid.
274.6 Submission of bids.
274.7 Acceptance of bids.
274.8 Bids-revocations-rejections-postponements.

[[Page 653]]

274.9 Delegation of authority to the Secretary of the Treasury.
274.10 Reservations.

    Authority: Sec. 24, Foreign Military Sales Act (22 U.S.C. 2764) and 
Executive Order 11501 (34 FR 20169).

    Source: 38 FR 858, Jan. 5, 1973, unless otherwise noted.



Sec. 274.1  Purpose.

    The purpose of this memorandum is to prescribe regulations under 
which the Secretary of Defense or his designee may, from time to time, 
by public notice, offer financial institutions the opportunity to bid on 
the interest rates for the subject agreements. The bids made will be 
subject to the terms, conditions, and procedures herein set forth, 
except as they may be supplemented in the public notice or notices 
issued by the Secretary of Defense or his designee in connection with 
particular offerings.



Sec. 274.2  Definitions.

    (a) The terms public notice, notices, or announcement mean the 
public notice of invitation to bid and any supplementary or amendatory 
notices or announcements with respect thereto, including, but not 
limited to, any statement released to the press by the Secretary of 
Defense or his designee and notices sent to those who have filed notices 
of intent to bid or who have filed bids.
    (b) The term Loan Agreement means the proposed agreement between the 
foreign government and the private U.S. lender as described in the 
particular notice of Invitation to Bid.



Sec. 274.3  Public notice.

    (a) Bids hereunder will be invited through a public notice issued by 
the Secretary of Defense or his designee which will prescribe the amount 
of the loan for which bids are invited, the repayment schedule, the 
conditions under which bidders may specify the rate of interest, and the 
date and closing hour for receipt of bids.
    (b) Accompanying the notice will be the form of the Loan Agreement 
which the successful bidder must execute with the borrower, except for 
those terms which will be subject to bidding.



Sec. 274.4  U.S. guaranty.

    Under section 24 of the Foreign Military Sales Act (22 U.S.C. 2764), 
any individual, corporation, partnership, or other juridical entity 
(excluding U.S. Government agencies) will be guaranteed against 
political and credit risks of nonpayment arising out of their financing 
of credit sales of defense articles and defense services to friendly 
countries and international organizations. Section 24 explicitly 
provides that guarantees thereunder are backed by the full faith and 
credit of the United States. Fees in the amount of one-fourth of 1 
percent of the amount of credits agreed upon shall be charged for such 
guaranties.



Sec. 274.5  Notice of intent to bid.

    Any individual or organization, syndicates, or other group which 
intends to submit a bid, must, when required by the notice, give written 
notice of such intent on the appropriate form at the place and within 
the time specified in the public notice. Such notice, which shall be 
given to the Federal Reserve Bank of New York, 33 Liberty Street, New 
York, NY 10045, will not constitute a commitment to bid.



Sec. 274.6  Submission of bids.

    (a) General. Bids will be received only at the place specified and 
not later than the time designated in the public notice. Bids shall be 
irrevocable.
    (b) Interest rates. Bids must be expressed in terms of rates of 
interest not to exceed three decimals, for example, 5.125 percent.
    (c) Group bids. A syndicate or other group submitting a bid must act 
through a representative who must be a member of the group. The 
representative must warrant to the Secretary of Defense or his designee, 
that he has all necessary power and authority to act for each member and 
to bind the members jointly and severally. In addition to whatever other 
data may be required by the Secretary of Defense or his designee, in the 
case of a syndicate, the representative must file, within 1 hour after 
the time for opening bids, at the place specified in the public notice 
for receipt of bids a final statement of

[[Page 654]]

the composition of the syndicate membership and the amount of each 
member's underwriting participation.



Sec. 274.7  Acceptance of bids.

    (a) Opening bids. Bids will be opened at the time and place 
specified in the public notice.
    (b) Acceptance of successful bid. The Secretary of Defense or his 
designee will notify any successful bidder of acceptance in the manner 
and form specified in the public notice.



Sec. 274.8  Bids-revocations-rejections-post ponements.

    The Secretary of Defense or his designee in his discretion, may (a) 
revoke the public notice of invitation to bid at any time before opening 
bids, (b) return all bids unopened either at or prior to the time 
specified for their opening, (c) reject any or all bids, (d) postpone 
the time for presentation and opening of bids, and (e) waive any 
immaterial or obvious defect in any bid. Any action the Secretary of 
Defense or his designee may take in these respects shall be final. In 
the event of a postponement, known bidders will be advised thereof and 
their bids returned unopened.



Sec. 274.9  Delegation of authority to the Secretary of the Treasury.

    There is hereby delegated to the Secretary or Acting Secretary of 
the Treasury the authority, in the name of and title of the Secretary of 
the Treasury, to invite bids under this memorandum, to issue, modify and 
revoke public notices, notices, and announcements concerning such bids, 
to prescribe additional terms and conditions with respect thereto, 
consistent with this memorandum, to receive, return, open, reject, and 
accept bids, and to take such other actions as may be necessary and 
proper to execute this delegation of authority to implement this 
memorandum, excluding, however, the issuance of guaranties under Sec. 
274.4.



Sec. 274.10  Reservations.

    The Secretary of Defense reserves the right, at any time, or from 
time to time, to amend, repeal, supplement, revise or withdraw all or 
any of the provisions of this memorandum.



PART 275_OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS: RIGHTS 
TO FINANCIAL PRIVACY ACT OF 1978--Table of Contents




Sec.
275.1 Purpose.
275.2 Applicability and scope.
275.3 Policy.
275.4 Information requirements.
275.5 Responsibilities.
275.6 Definitions.
275.7 Requesting basic identifying account information.
275.8 Procedures for obtaining customer's consent.
275.9 Other access procedures.
275.10 Requests for financial records in connection with foreign 
          intelligence and foreign counterintelligence activities.
275.11 Emergency access procedures.
275.12 Procedures for delay of notice.
275.13 Procedures for releasing information obtained from financial 
          institutions.
275.14 Right to Financial Privacy Act of 1978 Annual Report.

Enclosure 1 to Part 275--Request for Basic Identifying Account Data 
          Format
Enclosure 2 to Part 275--Customer Consent and Authorization for Access 
          Format
Enclosure 3 to Part 275--Formal Written Request for Access Format
Enclosure 4 to Part 275--Certificate of Compliance With the Right to 
          Financial Privacy Act of 1978
Enclosure 5 to Part 275--Obtaining Access to Financial Records Overseas

    Authority: 92 Stat. 3697 et seq. (12 U.S.C. 3401, et seq.)

    Source: 45 FR 17576, Mar. 19, 1980, unless otherwise noted. 
Redesignated at 56 FR 57984, Nov. 15, 1991.



Sec. 275.1  Purpose.

    This part implements Title 12, U.S.C. section 3401, et seq., Pub. L. 
95-630, ``Right to Financial Privacy Act of 1978,'' and prescribes the 
procedures for the Department of Defense to use to gain access to 
financial records maintained by financial institutions.



Sec. 275.2  Applicability and scope.

    (a) The provisions of this part apply to the Office of the Secretary 
of Defense, the Military Departments, the Defense Investigative Service, 
and the National Security Agency (hereafter referred to as the ``DoD 
Components'').

[[Page 655]]

    (b) Its provisions apply only to financial records maintained by 
financial institutions as defined in Sec. 275.6(a).

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.3  Policy.

    (a) It is the policy of the Department of Defense when obtaining 
financial records from a financial institution to seek the consent of 
the customer to whom the record pertains, unless doing so compromises or 
harmfully delays a legitimate law enforcement inquiry. If the person 
declines to consent to disclosure, the alternative means of obtaining 
the records authorized by this part shall be utilized.
    (b) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining 
access to financial records maintained by military banking contractors 
located outside of the United States, the District of Columbia, Guam, 
American Samoa, or the Virgin Islands. The procedures outlined in 
enclosure 5 may be followed in obtaining financial information from 
these facilities.

[45 FR 17576, Mar. 19, 1980, as amended at 46 FR 29706, June 3, 1981]



Sec. 275.4  Information requirements.

    The report required by Sec. 275.14 of this part is assigned Report 
Control Symbol DD-COMP(A)1538.

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.5  Responsibilities.

    (a) Heads of affected DoD Components shall:
    (1) Follow the procedures outlined in this part when seeking access 
to financial records.
    (2) Establish procedures for implementing this part within the 
Component.
    (3) Established procedures to ensure that the report required by 
Sec. 275.14 is forwarded to the Defense Privacy Board, Office of the 
Deputy Assistant Secretary of Defense (Administration).
    (b) The Deputy Assistant Secretary of Defense (Administration), or 
designee, shall:
    (1) Prepare a consolidated DoD annual report required by 12 U.S.C. 
3421(b) and Sec. 275.14.
    (2) Provide policy guidance to DoD Components to implement this 
part.

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.6  Definitions.

    (a) Financial institution. Any office of a bank, savings bank, 
credit card issuer, industrial loan company, trust company, savings and 
loan, building and loan, homestead association (including cooperative 
banks), credit union, or consumer finance institution that is located in 
any State or territory of the United States, or in the District of 
Columbia, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
    (b) Financial record. An original, its copy, or information known to 
have been extracted from the original record held by a financial 
institution that pertains to a customer's relationship with the 
financial institution.
    (c) Person. An individual or a partnership of five or less 
individuals.
    (d) Customer. Any person or authorized representative of that person 
who used or is using any service of a financial institution or for whom 
a financial institution is acting or has acted as fiduciary for an 
account maintained in the name of that person.
    (e) Law enforcement office. Any element of a DoD Component 
authorized by the Component head to conduct law enforcement inquiries.
    (f) Law enforcement inquiry. A lawful investigation or official 
proceeding that inquires into a violation of or failure to comply with a 
criminal or civil statute, or any rule, regulation, or order issued 
pursuant thereto.
    (g) Personnel security investigation. An investigation required to 
determine a person's eligibility for access to classified information, 
assignment or retention in sensitive duties, or other designated duties 
requiring such investigation. Personnel security investigations include 
investigations of subversive affiliations, suitability information, or 
hostage situations conducted for the purpose of making personnel 
security determinations; and also include investigations of allegations 
that arise subsequent to adjudicative action that require resolution to 
determine an individual's current eligibility for access

[[Page 656]]

to classified information, or assignment or retention in a sensitive 
position.
    (h) Personnel security element. Any element of a DoD Component 
authorized by the Secretary of Defense to conduct personnel security 
investigations.



Sec. 275.7  Requesting basic identifying account information.

    (a) A DoD law enforcement office may issue a formal written request 
for basic identifying account information to a financial institution 
relevant to a legitimate law enforcement inquiry. A request may be 
issued to a financial institution for any or all of the following 
identifying data:
    (1) Name.
    (2) Address.
    (3) Account Number.
    (4) Type of account of any customer or ascertainable group of 
customers associated with a financial transaction or class of financial 
transactions.
    (b) A request for disclosure of the above specified basic 
identifying information concerning a customer's account shall not 
require any customer notice (Sec. Sec. 275.9, 275.11, and 275.13), 
challenge (Sec. 275.9) or transfer (Sec. 275.13) procedures. However, 
this partial exception for basic identifying data shall not alter the 
mandatory access requirements set forth in Sec. Sec. 275.8 and 275.9 to 
obtain the actual financial record itself.
    (c) A format for requesting basic identifying account data is set 
forth in enclosure 1 of this part.

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.8  Procedures for obtaining customer's consent.

    (a) A DoD law enforcement office or personnel security element 
seeking access to a person's financial records shall, when feasible, 
obtain the customer's consent.
    (b) Any consent obtained under Sec. 275.8(a) shall:
    (1) Be in writing, signed, and dated.
    (2) Identify the particular financial records that are being 
disclosed.
    (3) State that the customer may revoke the consent at any time 
before disclosure.
    (4) Specify the purpose for disclosure and to which agency the 
records may be disclosed.
    (5) Authorize the disclosure for a period not in excess of 3 months.
    (6) Contain a Privacy Act advisory statement required by part 286a 
of this title for a personnel security investigation.
    (7) Contain a ``Statement of Customer Rights Under the Right to 
Financial Privacy Act of 1978'' (enclosure 2).
    (c) Any customer's consent not containing all of the elements listed 
in Sec. 275.8(b), shall be void. A customer consent form, in a format 
set forth in enclosure 2, shall be used for this purpose.
    (d) A copy of the customer's consent shall be made a part of the law 
enforcement inquiry or personnel security investigation file.
    (e) A certification of compliance with 12 U.S.C. 3401 et seq., in 
writing (enclosure 4), along with the customer's consent, shall be 
provided to the financial institution as a prerequisite to obtaining 
access to financial rec ords.
    (f) The annual reporting requirements of Sec. 275.14 shall apply to 
any request for access under Sec. 275.8(a).

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.9  Other access procedures.

    (a) Access by compulsory legal process--(1) Administrative summons 
or subpoena. (i) Within the Department of Defense, the Inspector 
General, DoD, has the authority under Pub. L. 95-452 (The Inspector 
General Act of 1978, as amended by Pub. L. 97-252) to issue 
administrative subpoenas for access to financial records. No other DoD 
Component official may issue summonses or subpoenas for access to these 
records.
    (ii) The Inspector General, DoD, shall issue administrative 
procedures for access to financial records in accordance with 
established procedures.
    (2) Search warrant. (i) A law enforcement office may obtain 
financial records by using a search warrant obtained under Rule 41 of 
the Federal Rules of Criminal Procedure in appropriate cases.
    (ii) Unless a delay of notice has been obtained under provisions of 
Sec. 275.12,

[[Page 657]]

the law enforcement office shall, no later than 90 days after serving 
the search warrant, mail to the customer's last known address a copy of 
the search warrant together with the following notice:

    Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were obtained 
by this [agency or department] on [date] for the following purpose: 
[state purpose]. you may have rights under the Right to Financial 
Privacy Act of 1978.

    (iii) In any state or territory of the United States, or in the 
District of Columbia, Puerto Rico, Guam, American Samoa, or the Virgin 
Islands, search warrants signed by installation commanders or military 
judges shall not be used to gain access to financial records.
    (3) Judicial subpoena. Judicial subpoenas are those issued in 
connection with a pending judicial proceeding and inlcude subpoenas 
issued under paragraph 115 of the Manual for Courts-Martial (1969 
Revised) and Article 46 of the Uniform Code of Military Justice. 
Cognizant legal counsel shall be consulted on the availability and use 
of judicial subpoenas.
    (b) Formal written request. (1) A law enforcement office may issue a 
formal written request for financial records when the records sought are 
relevant to a legitimate law enforcement inquiry. This request may be 
issued only if the customer has declined to consent, Sec. 275.8, to the 
disclosure of his or her records, or if it is determined that to seek 
consent from the customer would compromise or harmfully delay a 
legitimate law enforcement inquiry.
    (2) A formal written request shall be in a format set forth in 
enclosure 3 and shall:
    (i) State that the request is issued under the Right to Financial 
Privacy Act of 1978 and the Component's implementation of this part.
    (ii) Describe the specific records to be examined.
    (iii) State that access is sought in connection with a legitimate 
law enforcement inquiry.
    (iv) Describe the nature of the inquiry.
    (v) Be signed by the head of the law enforcement office or a 
designee.
    (3) When a formal written request is issued to a financial 
institution, a copy of the request shall, at the same time or before, be 
personally served upon, or mailed to the customer's last known address 
unless a delay of customer notice has been obtained under Sec. 275.12. 
The notice to the customer shall be in a format similar to enclosure 
shall be personally served at least 14 days or mailed at least 18 days 
prior to the date on which access is sought.
    (4) The official who signs the customer notice shall be designated 
to receive any challenge from the customer.
    (5) The customer shall have 14 days to challenge a notice request 
when personal service is made and 18 days when service is by mail.
    (6) Components shall establish procedures to ensure that no access 
to financial records is attempted before the expiration of the pertinent 
time period while awaiting receipt of a potential customer challenge, or 
prior to the adjudication, prescribed by 12 U.S.C. 3410, of any 
challenge made.
    (7) When a customer fails to file a challenge to access to financial 
records within the pertinent above time periods, or after a challenge is 
adjudicated in favor of the law enforcement office, the head of the 
office, or a designee, shall certify in writing to the financial 
institution that such office has complied with the requirements of 12 
U.S.C. 3401 et seq. No access to any financial records shall be made 
before such certification is given.
    (c) Certification. Prior to obtaining the requested records under 
Sec. 275.9 (a)(2) and (a)(3), a certification of compliance with 12 
U.S.C. 3401 et seq. and Enclosure 4 of this part, shall be provided to 
the financial institution as a prerequisite to obtaining access to 
financial records.
    (d) Annual report. The annual reporting requirements of Sec. 275.14 
shall apply to access procedures under paragraph (a) and (b) of this 
section.

[45 FR 17576, Mar. 19, 1980, as amended at 48 FR 20228, May 5, 1983. 
Redesignated and amended at 56 FR 57984, Nov. 15, 1991]

[[Page 658]]



Sec. 275.10  Requests for financial records in connection with foreign 
intelligence and foreign counterintelligence activities.

    (a) Except as specified in paragraph (b) of this section, nothing in 
this part shall apply to requests for financial records in connection 
with authorized foreign intelligence and foreign counterintelligence 
activities as defined in E.O. 12036, January 24, 1978.
    (b) When a request for financial rec ords is made under paragraph 
(a) of this section, a Component official designated by the Secretary of 
Defense, the Secretary of a Military Department, or the Head of the DoD 
Component authorized to conduct foreign intelligence and foreign 
counterintelligence activities shall certify to the financial 
institution that the requesting Component has complied with the 
provisions of 12 U.S.C. 3401 et seq. Such certification, in a format 
similar to enclosure 4 of this part, shall be made before obtaining any 
records.
    (c) A Component requesting financial records under paragraph (a) of 
this section, may notify the financial institution from which records 
are sought that section 3414(3) of 12 U.S.C., prohibits disclosure to 
any person by the institution, its agents, or employees that financial 
records have been sought or obtained.
    (d) The annual reporting requirements of Sec. 275.14 shall apply to 
any request for access under paragraph (a) of this section.

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.11  Emergency access procedures.

    (a) Except as provided in paragraph (b) and (c) of this section, 
nothing in this part shall apply to a request for financial records from 
a financial institution when the law enforcement office making such 
request determines that a delay in obtaining access to such records 
would create an imminent danger of:
    (1) Physical injury to any person.
    (2) Serious property damage.
    (3) Flight to avoid prosecution.
    (b) When access is made to financial records under paragraph (a) of 
this section, Component official designated by the Secretary of Defense 
or the Secretary of a Military Department shall:
    (1) Certify in writing, in a format set forth in Enclosure 4 of this 
part, to the financial institution that the Component has complied with 
the provisions of 12 U.S.C. 3401 et seq., as a prerequisite to obtaining 
access.
    (2) Submit for filing with the appropriate court a signed sworn 
statement setting forth the grounds for the emergency access within 5 
days of obtaining access to financial records.
    (c) After filing of the signed sworn statement required by paragraph 
(b)(2) of this section, the Component that has obtained access to 
financial records under paragraph (a) of this section, shall personally 
serve or mail to the customer a copy of the request to the financial 
institution and the following notice, unless a delay of notice has been 
obtained under Sec. 275.12.

    Records concerning your transactions held by the financial 
institution named in the attached request were obtained by [agency or 
department] under the Right to Financial Privacy Act of 1978 on [date] 
for the following purpose: [state with reasonable specificity the nature 
of the law enforcement inquiry]. Emergency access to such records was 
obtained on the grounds that [state grounds].

    Mailings under this paragraph shall be by certified or registered 
mail to the last known address of the customer.
    (d) The annual reporting requirements of Sec. 275.14 shall apply to 
any access pursuant to paragraph (a) of this section.

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.12  Procedures for delay of notice.

    (a) The customer notice required by Sec. 275.9(b)(3), Sec. 
275.11(c), or Sec. 275.13(c) may be delayed for successive periods of 
90 days. The notice required by paragraph (a)(2)(ii) of this section may 
be delayed for one period of 180 days and successive periods of 90 days. 
A delay of notice may only be granted by a court of competent 
jurisdiction and only when not serving the notice would result in:
    (1) Endangering the life or physical safety of any person.
    (2) Flight from prosecution.
    (3) Destruction of or tampering with evidence.

[[Page 659]]

    (4) Intimidation of potential witnesses.
    (5) Otherwise seriously jeopardizing an investigation or official 
proceeding or unduly delaying a trial or ongoing official proceeding to 
the same degree as the circumstances in paragraphs (a)(1) through (4) of 
this section.
    (b) When a delay of notice is appropriate, legal counsel shall be 
consulted to obtain such a delay. Application for delays of notice shall 
be made with reasonable specificity.
    (c) Upon the expiration of a delay obtained under paragraph (a) of 
this section, of a notice required by:
    (1) Section 275.9(a)(2)(ii), the law enforcement office obtaining 
such records shall mail to the customer a copy of the search warrant and 
the following notice:

    Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were obtained 
by this [agency or department] on [date]. Notification was delayed 
beyond the statutory 90-day delay period pursuant to a determination by 
the court that such notice would seriously jeopardize an investigation 
concerning [state with reasonable specificity]. You may have rights 
under the Right to Financial Privacy Act of 1978.

    (2) Section 275.9(b)(3), the law enforcement office obtaining such 
records shall serve personally or mail to the customer a copy of the 
process or request and the following notice:

    Records of information concerning your transactions which are held 
by the financial institution named in the attached process or request 
were supplied to or requested by the Government authority named in the 
process or request on [date]. Notification was withheld pursuant to a 
determination by the [title of the court so ordering] under the Right to 
Financial Privacy Act of 1978 that such notice might [state reason]. The 
purpose of the investigation or official proceeding was [state purpose 
with reasonable specificity].

    (3) Section 275.11(c), the law enforcement office obtaining 
financial records shall serve personally or mail to the customer a copy 
of the request and the notice required by Sec. 275.11(c).
    (4) Section 275.13(c), the law enforcement office or personnel 
security element transferring such records shall serve personally or 
mail to the customer the notice required by Sec. 275.13(c).
    (d) The annual reporting requirements of Sec. 275.14 shall apply to 
any request for access under the delay of notice.

[45 FR 17576, Mar. 19, 1980. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]



Sec. 275.13  Procedures for releasing information obtained from 
financial institutions.

    (a) Financial records obtained under 12 U.S.C. 3401 et seq., shall 
be marked:

    This record was obtained pursuant to the Right to Financial Privacy 
Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to 
another federal agency or department without prior compliance with the 
transferring requirements of 12 U.S.C. 3412.

    (b) Financial records obtained under the provisions of 12 U.S.C. 
3401 et seq., shall not be transferred to another agency or department 
outside the Department of Defense unless the head of the transferring 
law enforcement office, personnel security element, or delegate 
certifies in writing that there is reason to believe that the records 
are relevant to a legitimate law enforcement inquiry within the 
jurisdiction of the receiving agency or department. Such certificates 
shall be maintained with the DoD Component copy of the released records.
    (c) Unless a delay of customer notice has been obtained under Sec. 
275.12, when financial information is transferred under paragraph (b) of 
this section the law enforcement office or personnel security element 
shall within 14 days, personally serve or mail to the customer, at his 
or her last known address, a copy of the certificate required by 
paragraph (b) of this section, and the following notice:

    Copies of or information contained in your financial records 
lawfully in possession of (name of Component) have been furnished to 
(name of agency) pursuant to the Right to Financial Privacy Act of 1978 
for the following purposes: [state the nature of the law enforcement 
inquiry with reasonable specificity]. If you believe that this transfer 
has not been made to further a legitimate law enforcement inquiry, you 
may have legal rights under the Financial Privacy Act of 1978 or the 
Privacy Act of 1974.

    (d) If a request for release of information is from a federal agency 
authorized to conduct foreign intelligence or

[[Page 660]]

foreign counterintelligence activities, as defined in E.O. 12036 for 
purposes of conducting such activities, the transferring DoD Component 
shall release the information without notifying the customer, unless 
permission to provide notification is given in writing by the requesting 
agency.
    (e) Whenever financial data obtained under this part is incorporated 
into a report of investigation or other correspondence, precautions must 
be taken to ensure that:
    (1) The reports or correspondence are not distributed outside the 
Department of Defense except in compliance with paragraphs (b) and (c) 
of this section; and
    (2) The report or correspondence contains an appropriate warning 
restriction on the first page or cover.
    (f) A suggested restrictive legend for use on the first page or 
cover sheet of reports or other correspondence follows:

    Some of the information contained herein (cite specific paragraph) 
is financial record information which was obtained pursuant to the Right 
to Privacy Act of 1978, 12 U.S.C. 3401 et seq. This information may not 
be released to another federal agency or department outside the 
Department of Defense without compliance with the specific requirements 
of 12 U.S.C. 3412.

[45 FR 17576, Mar. 19, 1980, as amended at 46 FR 29706, June 3, 1981. 
Redesignated and amended at 56 FR 57984, Nov. 15, 1991]



Sec. 275.14  Right to Financial Privacy Act of 1978 Annual Report.

    (a) Each affected DoD Component shall compile an annual report 
setting forth the following for the preceding calendar year:
    (1) The number of requests for access to financial institutions 
specifying the types of access and any other information deemed relevant 
or useful.
    (2) The number of customer challenges to access and whether they 
were successful.
    (3) The number of transfers to agencies outside of the Department of 
Defense of information obtained under this part.
    (4) The number of customers challenges to the transfer of 
information and whether they were successful.
    (5) The number of applications for delay of notice, the number 
granted, and the names of the officials requesting such delays.
    (6) The number of delay of notice extensions sought and the number 
granted.
    (7) The number of refusals by financial institutions to grant access 
by category of authorization, such as, customer consent or formal 
written request.
    (b) This report shall be submitted to the Defense Privacy Board, 
Office of the Deputy Assistant Secretary of Defense (Administration), by 
February 15 annually.

  Enclosure 1 to Part 275--Request for Basic Identifying Account Data 
                                 Format

                          [Official Letterhead]

Mr./Mrs. ------------,
Chief Teller (as appropriate), First National Bank, Little Rock, AR 
          72203

    Dear Mr./Mrs. ------------. In connection with a legitimate law 
enforcement inquiry and pursuant to section 3413(g) of the Right to 
Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., you are requested 
to provide the following account information: [Name, address, account 
number, and type of account of any customer or ascertainable group of 
customers associated with a certain class of financial transactions as 
set forth in Sec. 275.7.]
    I hereby certify, pursuant to section 3403(b) of the Right of 
Financial Privacy Act of 1978, that the provisions of the Act have been 
complied with as to this request for account information.

[Official Signature Block]

    Under section 3417(c) of the Act, good faith reliance upon this 
certification relieves your institution and its employees and agents of 
any possible liability to the subject in connection with the disclosure 
of the requested financial records.

[46 FR 29706, June 3, 1981. Redesignated and amended at 56 FR 57984, 
Nov. 15, 1991]

 Enclosure 2 to Part 275--Customer Consent and Authorization for Access 
                                 Format

    Pursuant to section 3404(a) of the Right to Financial Privacy Act of 
1978, I, [Name of customer], having read the explanation of my rights on 
the reverse side, hereby authorize the [Name and address of financial 
institution] to disclose these financial rec ords: [List the particular 
financial records] to [DoD Component] for the following purpose(s): 
[Specify the purpose(s)].

[[Page 661]]

    I understand that this authorization may be revoked by me in writing 
at any time before my records, as described above, are disclosed, and 
that this authorization is valid for no more than three months from the 
date of my signature.
Date:___________________________________________________________________
Signature:______________________________________________________________
[Typed name]
[Mailing address of customer]

Statement of Customer Rights Under the Right to Financial Privacy Act of 
                                  1978

    Federal law protects the privacy of your financial records. Before 
banks, savings and loan associations, credit unions, credit card 
issuers, or other financial institutions may give financial information 
about you to a federal agency, certain procedures must be followed.

                      Consent to Financial Records

    You may be asked to consent to the financial institution making your 
financial rec ords available to the Government. You may withhold your 
consent, and your consent is not required as a condition of doing 
business with any financial institution. If you give your consent, it 
can be revoked in writing at any time before your records are disclosed. 
Furthermore, any consent you give is effective for only three months, 
and your financial institution must keep a record of the instances in 
which it discloses your financial information.

                          Without Your Consent

    Without your consent, a federal agency that wants to see your 
financial records may do so ordinarily only by means of a lawful 
subpoena, summons, formal written request, or search warrant for that 
purpose. Generally, the federal agency must give you advance notice of 
its request for your records explaining why the information is being 
sought and telling you how to object in court. The federal agency must 
also send you copies of court documents to be prepared by you with 
instructions for filling them out. While these procedures will be kept 
as simple as possible, you may want to consult an attorney before making 
a challenge to a federal agency's request.

                               Exceptions

    In some circumstances, a federal agency may obtain financial 
information about you without advance notice or your consent. In most of 
these cases, the federal agency will be required to go to court for 
permission to obtain your records without giving you notice beforehand. 
In these instances, the court will make the Government show that its 
investigation and request for your rec ords are proper.
    When the reason for the delay of notice no longer exists, you will 
usually be notified that your records were obtained.

                         Transfer of Information

    Generally, a federal agency that obtains your financial records is 
prohibited from transferring them to another federal agency unless it 
certifies in writing that the transfer is proper and sends a notice to 
you that your records have been sent to another agency.

                                Penalties

    If the federal agency or financial institution violates the Right to 
Financial Privacy Act, you may sue for damages or seek compliance with 
the law. If you win, you may be repaid your attorney's fee and costs.

                         Additional Information

    If you have any questions about your rights under this law, or about 
how to consent to release your financial records, please call the 
official whose name and telephone number appears below:
________________________________________________________________________
(Last Name, First Name, Middle Initial) Title (Area Code) (Telephone 
number)
________________________________________________________________________
(Component activity, Local Mailing Address)

[46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15, 1991]

    Enclosure 3 to Part 275--Formal Written Request for Access Format

                          [Official Letterhead]

Mr./Mrs. ------------,
President (as appropriate), City National Bank and Trust Company, 
          Altoona, PA
    Dear Mr./Mrs. ------------. In connection with a legitimate law 
enforcement inquiry and pursuant to section 3402(5) and section 3408 of 
the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., and 
[cite Component's implementation of this part], you are requested to 
provide the following account information pertaining to the subject:

[Describe the specific records to be examined]

    The [DoD Component] is without authority to issue an administrative 
summons or subpoena for access to these financial rec ords which are 
required for [Describe the nature or purpose of the inquiry].
    A copy of this request was [personally served upon or mailed] to the 
subject on [Date] who has [10 or 14] days in which to challenge this 
request by filing an application in an appropriate United States 
district court if the subject desires to do so.
    Upon the expiration of the above mentioned time period and absent 
any filing or

[[Page 662]]

challenge by the subject, you will be furnished a certification 
certifying in writing that the applicable provisions of the Act have 
been complied with prior to obtaining the requested records. Upon your 
receipt of a Certificate of Compliance with the Right to Financial 
Privacy Act of 1978, you will be relieved of any possible liability to 
the subject in connection with the disclosure of the requested financial 
records.

[Official Signature Block]

[46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15, 1991]

  Enclosure 4 to Part 275--Certificate of Compliance With the Right to 
                      Financial Privacy Act of 1978

                          [Official Letterhead]

Mr./Mrs. ------------,
Manager, Army Federal Credit Union, Fort Ord, CA 93941
    Dear Mr./Mrs. ------------. I certify, pursuant to section 3403(b) 
of the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq., 
that the applicable provisions of that statute have been complied with 
as to the [Customer's consent, search warrant or judicial subpoena, 
formal written request, emergency access, as applicable] presented on 
[Date], for the following financial records of [Customer's name]:

[Describe the specific records]
[Official Signature Block]

    Pursuant to section 3417(c) of the Right to Financial Privacy Act of 
1978, good faith reliance upon this certificate relieves your 
institution and its employees and agents of any possible liability to 
the customer in connection with the disclosure of these financial 
records.

[46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15, 1991]

 Enclosure 5 to Part 275--Obtaining Access to Financial Records Overseas

    (a) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining 
access to financial records maintained by military banking contractors 
in overseas or other financial institutions in offices located on DoD 
installations outside the United States, the District of Columbia, Guam, 
American Samoa, or the Virgin Islands. The purpose of this part is to 
describe a uniform procedure for access to the financial records of 
these institutions.
    (b) Access to financial records maintained by military banking 
contractors in overseas areas or other financial institutions located on 
DoD installations outside the United States, the District of Columbia, 
Guam, American Samoa or the Virgin Islands is preferably obtained by 
customer consent. However, in those cases where it would not be 
appropriate to obtain this consent or where such consent is refused and 
the financial institution is not otherwise willing to provide access to 
its records the law enforcement activity may seek access by the use of a 
search authorization issued by the appropriate military official. This 
search authorization shall be issued in accordance with established 
Component procedures and the Military Rules of Evidence.
    (c) Information obtained under this enclosure shall be properly 
identified as financial information and transferred only where an 
official need-to-know exists. Failure to identify or limit access in 
accordance with this paragraph does not render the information 
inadmissible in courts-martial or other proceedings.
    (d) Access to financial records maintained by all other financial 
institutions overseas by law enforcement activities shall be in 
accordance with the local foreign statutes or procedures governing such 
access.

[46 FR 29706, June 3, 1981. Redesignated at 56 FR 57984, Nov. 15, 1991]



PART 277_IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT--Table 
of Contents




Sec.
277.1 Purpose.
277.2 Applicability.
277.3 Policy.
277.4 Responsibilities.

Appendix to Part 277--Program Fraud Civil Remedies

    Authority: 31 U.S.C. 3807.

    Source: 53 FR 39262, Oct. 6, 1988, unless otherwise noted.



Sec. 277.1  Purpose.

    This part establishes uniform policies, assigns responsibilities, 
and prescribes procedures for implementation of Pub. L. 99-509.



Sec. 277.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD); 
the Military Departments; the Office of the Inspector General, 
Department of Defense (OIG, DoD); the Defense Agencies; and the DoD 
Field Activities (hereafter referred to collectively as ``DoD 
Components'').



Sec. 277.3  Policy.

    It is DoD policy to redress fraud in DoD programs and operations 
through

[[Page 663]]

the nonexclusive use of Pub. L. 99-509. All DoD Components shall comply 
with the requirements of this part in using this new remedy. Changes or 
modifications to this part by implementing organizations are prohibited. 
Implementing regulations are authorized only to the extent necessary to 
effectively carry out the requirements of this part.



Sec. 277.4  Responsibilities.

    (a) The Inspector General, Department of Defense (IG, DoD), shall 
establish procedures for carrying out the duties and responsibilities of 
the ``investigating official'' as outlined in the appendix of this part.
    (b) The General Counsel, Department of Defense (GC, DoD), shall:
    (1) Establish procedures for carrying out the duties and 
responsibilities of the authority head, Department of Defense, which 
have been delegated to the GC, DoD, as set forth in appendix of this 
part.
    (2) Establish procedures for carrying out the duties and 
responsibilities for appointment and support of presiding officers, as 
set forth in appendix of this part; and
    (3) Review and approve the regulations and instructions required by 
this section to be submitted for approval by the GC, DoD.
    (c) The Secretaries of the Military Departments shall:
    (1) Establish procedures for carrying out the duties and 
responsibilities of the ``authority head'' and of the ``reviewing 
officials'' for their respective Departments, and for obtaining and 
supporting presiding officers from other Agencies as specified in Office 
of Personnel Management (OPM) regulations; (see appendix of this part).
    (2) Make all regulations or instructions promulgated subject to the 
approval of the GC, DoD; and
    (3) Delegate duties as appropriate.
    (d) The General Counsel of the National Security Agency (GC, NSA) 
and the General Counsel of the Defense Logistics Agency (GC, DLA) shall 
be responsible for establishing procedures for carrying out the duties 
and responsibilities of the reviewing officials that have been delegated 
to them, as stated in appendix of this part. All Regulations or 
Instructions promulgated pursuant to this part shall be submitted to the 
GC, DoD.

           Appendix to Part 277--Program Fraud Civil Remedies

                          A. Scope and Purpose

    1. The Department of Defense has the authority to impose civil 
penalties and assessments against persons who make, submit or present, 
or cause to be made, submitted, or presented, false, fictitious, or 
fraudulent claims or written statements to authorities or to their 
agents.
    2. This appendix:
    a. Establishes administrative policies and procedures for imposing 
civil penalties and assessments against persons who make, submit, or 
present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents;
    b. Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.
    3. The uniform policies and procedures established by this enclosure 
are binding on the authorities and authority heads in the Department of 
Defense and Military Departments. Additional administrative regulations 
necessary to carry out the requirements of the PFCRA and this part may 
be written by the authority heads. Any such regulations shall be 
consistent with the provisions of this appendix.

                             B. Definitions

                          1. Adequate Evidence

    Information sufficient to support the reasonable belief that a 
particular act or omission has occurred.

                              2. Authority

    a. The Department of Defense, which includes OSD, Organization of 
the Joint Chiefs of Staff (OJCS), Unified and Specified Commands, 
Defense Agencies, and DoD Field Activities.
    b. The Department of the Army.
    c. The Department of the Navy.
    d. The Department of the Air Force.

                            3. Authority Head

    a. For the Department of Defense, the Deputy Secretary of the 
Department of Defense or an official or employee of the Department of 
Defense or the Military Departments designated in writing by the Deputy 
Secretary of Defense.
    b. For the respective Military Departments, the Secretary of the 
Military Department or an official or employee of the Military 
Department designated in regulations

[[Page 664]]

promulgated by the Secretary to act on behalf of the Secretary.

                               4. Benefit

    In the context of statements, anything of value, including but not 
limited to any advantage, preference, privilege, license, permit, 
favorable decision, ruling status, or loan guarantee.

                                5. Claim

    Any request, demand, or submission made as follows:
    a. To the authority for property, services, or money (including 
money representing grants, loans, insurance, or benefits);
    b. To a recipient of property, services, or money from the authority 
or to a party to a contract with the authority:
    (1) For property or services if the United States:
    (a) Provided such property or services;
    (b) Provided any portion of the funds for the purchase of such 
property or services; or
    (c) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States:
    (a) Provided any portion of the money requested or demanded; or
    (b) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the authority that has the effect of decreasing an 
obligation to pay or account for property, services, or money.

                              6. Complaint

    The administrative complaint served by the reviewing official on the 
defendant under section G., below.

                              7. Defendant

    Any person alleged in a complaint under section G., below, to be 
liable for a civil penalty or assessment under Section C., below.

               8. DoD Criminal Investigative Organizations

    The U.S. Army Criminal Investigative Command, Naval Security and 
Investigative Command, U.S. Air Force Office of Special Investigations, 
and the Defense Criminal Investigative Service.

                              9. Government

    The U.S. Government.

                             10. Individual

    A natural person.

                          11. Initial Decision

    The Written decision of the presiding officer required by section J. 
or KK., below. This includes a revised initial decision issued following 
a remand or a motion of reconsideration.

                       12. Investigating Official

    a. The IG, DoD; or
    b. An officer or employee of the OIG designated by the IG;
    c. Who, if a member of the Armed Forces of the United States on 
active duty, is serving in Grade 0-7 or above or, if a civilian 
employee, is serving in a position for which the rate of basic pay is 
not less than the minimum rate of basic pay for Grade GS-16 under the 
General Schedule.

                     13. Knows or Has Reason to Know

    A person who, with respect to a claim or statement:
    a. Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    b. Acts in deliberate ignorance of the truth or falsity of the claim 
or statement; or
    c. Acts in reckless disregard of the truth or falsity of the claim 
or statement.

                                14. Makes

    Includes the terms presents, submits, and causes to be made, 
presented, or submitted. As the context requires, making or made shall 
likewise include the corresponding forms of such terms.

                               15. Person

    Any individual, partnership, corporation, association or private 
organization, and includes the plural of that term.

                    16. Preponderance of the Evidence

    The evidence necessary to support a presiding officer's decision 
that a violation of the PFCRA has occurred. Evidence that leads to the 
belief that what is sought to be proved is more likely true than not 
true.

                          17. Presiding Officer

    An officer or employee of the Department of Defense or an employee 
detailed to the Department of Defense from another agency who:
    a. Is selected under 5 U.S.C., chapter 33, pursuant to the 
competitive examination process applicable to administrative law judges;
    b. Is appointed by the authority head of DoD to conduct hearings 
under this part for cases arising in the Department of Defense or the 
Military Departments;
    c. Is assigned to cases in rotation so far as practicable;
    d. May not perform duties inconsistent with the duties and 
responsibilities of a presiding officer;

[[Page 665]]

    e. Is entitled to pay prescribed by the Office of Personnel 
Management (OPM) independently of ratings and recommendations made by 
the authority and in accordance with 5 U.S.C., chapters 51 and 53, 
subchapter III;
    f. Is not subject to a performance appraisal pursuant to 5 U.S.C., 
chapter 43; and
    g. May be removed, suspended, furloughed, or reduced in grade or pay 
only for good cause established and determined by the Merit Systems 
Protection Board (MSPB) on the record after opportunity for hearing by 
such Board.

                            18. Repesentative

    An Attorney-at-law duly licensed in any State, commonwealth, 
territory, the District of Columbia, or foreign country, who enters his 
or her appearance in writing to represent a party in a proceeding under 
this part, or an officer, director, or employee of a defendant or of its 
affiliate.

                         19. Reviewing Official

    a. In all cases arising in the Department of Defense and any of the 
Military Departments, the reviewing official shall be an officer or 
employee of an authority as follows:
    (1) Who is designated by the authority head to make the 
determination required under section E., below, of this enclosure;
    (2) Who, if a member of the Armed Forces of the United States on 
active duty, is serving in Grade 0-7 or above or, if a civilian 
employee, is serving in a position for which the rate of basic pay is 
not less than the minimum rate of basic pay for Grade GS-16 under the 
General Schedule; and
    (3) Who is as follows:
    (a) Not subject to supervision by, or required to report to, the 
investigating official;
    (b) Not employed in the organizational unit of the authority in 
which the investigating official is employed; and
    (c) Not an official designated to make suspension or debarment 
decisions.
    b. The General Counsel, Defense Logistics Agency (GC, DLA), shall be 
the reviewing official for all cases involving a claim or statement made 
to the DLA or any other part of the Department of Defense other than a 
Military Department or the National Security Agency (NSA). The General 
Counsel, National Security Agency (GC, NSA), shall be the reviewing 
official for all cases involving claims or statements made to that 
Agency. The General Counsel, Defense Logistics Agency (GC, DLA), and GC, 
NSA, may redelegate their authority to act as reviewing officials to any 
individual(s) meeting the criteria set out in subparagraph (1) of this 
section.
    c. The authority head of each Military Department shall select a 
reviewing official, who shall review all cases involving a claim or 
statement that was made to their Department.

                              20. Statement

    Any written repesentation, certification, affirmation, document, 
record, accounting, or bookkeeping entry made:
    a. With respect to a claim or to obtain the approval or payment of a 
claim (including relating to eligibility to make a claim); or
    b. With respect to (including relating to eligibility for):
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from the authority, or any State, 
political subdivision of a State, or other party; if the U.S. Government 
provides any portion of the money or property under such contract or for 
such grant, loan, or benefit, or if the U.S. Government will reimburse 
such State, political subdivision, or party for any portion of the money 
or property under such contract or for such grant, loan, or benefit.

              C. Basis for Civil Penalties and Assessments

                                1. Claims

    a. Any person who makes a claim that the person knows or has reason 
to know:
    (1) Is false, fictitious, or fraudulent;
    (2) Includes or is supported by a written statement that asserts a 
material fact that is false, fictitious, or fraudulent;
    (3) Includes or is supported by any written statement that:
    (a) Omits a material fact;
    (b) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (c) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (4) Is for payment for the provision of property or services that 
the person had not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,000 for each such claim.
    b. Each voucher, invoice, claim form, or other individual request or 
demand for property, services, or money constitutes a separate claim.
    c. A claim shall be considered made to an authority, recipient, or 
party when such claim is received by an agent, fiscal intermediary, or 
other entity, including any State or political subdivision thereof, 
acting for or on behalf of such authority, recipient, or party.
    d. Each claim for property, services, or money is subject to a civil 
penalty regardless of whether such property, service, or money is 
actually delivered or paid.
    e. If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject

[[Page 666]]

to a civil penalty under subparagraph a.(1) of this section shall also 
be subject to an assessment of not more than twice the amount of such 
claim or that portion thereof that is determined to be in violation of 
subparagraph a.(1) of this section. Such assessment shall be in lieu of 
damages sustained by the Government because of such claim.

                              2. Statements

    a. Any person who makes a written statement that:
    (1) The person knows or has reason to know the following:
    (a) Asserts a material fact that is false, fictitious, or 
fraudulent; or
    (b) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (2) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
statement.
    b. Each written representation, certification, or affirmation 
constitutes a separate statement.
    c. A statement shall be considered made to an authority when such 
statement is received by an agent, fiscal intermediary, or other entity, 
including any State or political subdivision thereof, acting for or on 
behalf of such authority.
    3. No proof of specific intent to defraud is required to establish 
liability under this section.
    4. In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held jointly and severally liable for a civil penalty with 
respect to such claims or statements.
    5. In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services) 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

                            D. Investigation

    1. If the investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted, then:
    a. The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    b. The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    c. The person receiving such subpoena shall be required to tender to 
the investigating official, or to the person designated to receive the 
documents, a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    2. If the investigating official concludes that an action under the 
PFCRA may be warranted, the investigating official shall submit a report 
containing the findings and conclusions of such investigation to the 
appropriate reviewing official(s). In instances where the false claim or 
false statement involves more than one authority within the Department 
of Defense, or where the investigating official finds that more than one 
case has arisen from the same set of facts, the investigating official 
may, at his or her sole discretion, refer the case(s) to the reviewing 
official of one of the affected authorities. That reviewing official 
shall consolidate the claims and statements and act for all. Nothing in 
this subection confers any right in any party to the consolidation or 
severance of any case(s), although presiding officers may, at their sole 
discretion, entertain motions to consolidate or sever.
    3. Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under 18 U.S.C. 287 or 31 U.S.C. 3729 and 3730, False 
Claims Act, or other civil relief, or to preclude or limit such 
official's discretion to defer or postpone a report or referral to the 
reviewing official to avoid interference with a criminal investigation 
or prosecution.
    4. Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.
    5. Nothing in this section shall preclude or limit the investigating 
official's authority to obtain the assistance of any investigative units 
of the Department of Defense, including those of the Military 
Departments. In this regard, appropriate investigation may be conducted 
by the Defense criminal investigative organizations and other 
investigative elements of the Military Departments and Defense Agencies.

                   E. Review by the Reviewing Official

    1. If, based on the report of the investigating official under 
subsection D.2., above, the reviewing official determines that there is 
adequate evidence to believe that a person is liable under section C., 
above, the reviewing official shall transmit to the Attorney

[[Page 667]]

General or his or her designated point of coordination within the 
Department of Justice a written notice of the reviewing official's 
intention to issue a complaint under section G., below.
    2. Such notice shall include the following:
    a. A statement of the reviewing official's reasons for issuing a 
complaint;
    b. A statement specifying the evidence that supports the allegations 
of liability;
    c. A description of the claims or statements upon which the 
allegations of liability are based;
    d. An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of 
section C., above.
    e. A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    f. A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.

                F. Prerequisites for Issuing a Complaint

    1. The reviewing official may issue a complaint under section G., 
below, only if:
    a. The Attorney General or an Assistant Attorney General designated 
by the Attorney General approves the issuance of a complaint in a 
written statement described in 31 U.S.C. 3803(b)(1); and
    b. In the case of allegations of liability under subsection C.1., 
above, with respect to a claim, the reviewing official determines that, 
with respect to such claim or a group of related claims submitted at the 
same time such claim is submitted (as defined in subsection 2. of this 
section), the amount of money or the value of property or services 
demanded or requested in violation of subsection C.1., above, does not 
exceed $150,000.00;
    2. For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    3. Nothing in this section shall be construed to limit the reviewing 
official's authority to join in a single complaint against a person's 
claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money or the value of property or services 
demanded or requested.
    4. In any case that involves claims or statements made to more than 
one entity within the Department of Defense or the Military Departments, 
or the reviewing officials having responsibility for each such entity, 
as stated in subsection D.2., above, shall have concurrent jurisdiction 
to make the required determinations under this section. In any such 
case, the responsible reviewing officials shall coordinate with each 
other prior to making any determination under this section. Where more 
than one case arises from the same set of facts, such cases shall be 
consolidated to the degree practicable, although the reviewing official 
shall have absolute discretion to make such determination. The 
requirements of this paragraph do not confer any procedural or 
substantive rights upon individuals, associations, corporations, or 
other persons or entities who might become defendants under the PFCRA.

                              G. Complaint

    1. On or after the date the Attorney General or an Assistant 
Attorney General designated by the Attorney General approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in section H., below.
    2. The complaint shall state the following:
    a. The allegations of liability against the defendant, including the 
statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    b. The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    c. Instructions for filing an answer to a request including a 
specific statement of the defendant's right to request a hearing, by 
filing an answer and to be represented by a representative; and
    d. That failure to file an answer within 30 days of service of the 
complaint shall result in the imposition of penalties and assessments 
without right to appeal, consistent with the provisions of section J., 
below.
    3. At the same time the reviewing official serves the complaint, he 
or she shall notify the defendant with a copy of this part and any 
applicable implementing regulations.

                         H. Service of Complaint

    1. Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    2. Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service may be 
made by the following:
    a. Affidavit of the individual serving the complaint by delivery;
    b. A United States Postal Service return receipt card acknowledging 
receipt; or
    c. Written acknowledgement of receipt by the defendant or his or her 
representative.

[[Page 668]]

                                I. Answer

    1. The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    2. In the answer, the defendant:
    a. Shall admit or deny each of the allegations of liability made in 
the complaint;
    b. Shall state any defense on which the defendant intends to rely;
    c. May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    d. Shall state the name, address, and telephone number of the person 
authorized by the defendant to act as defendant's representative, if 
any.
    3. If the defendant is unable to file an answer meeting the 
requirements of paragraph 2.b of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
subsection 2. of this section. The reviewing official shall, in such 
event, file promptly with the presiding officer the complaint, the 
general answer denying liability, and the request for an extension of 
time as provided in section K., below. For good cause shown, the 
presiding officer may grant the defendant additional time within which 
to file an answer meeting the requirements of subsection 2. of this 
section.
    4. The 30-day limitation for filing an answer may be tolled for a 
reasonable period of time by written agreement of the parties and 
approval of the authority head to allow time for settlement.

                J. Default Upon Failure to File an Answer

    1. If the defendant does not file an answer within the time 
prescribed in subsection I.1., above, and there is no approved written 
agreement as in subsection I.4, above, tolling the time prescribed, the 
reviewing official may then refer the complaint to the presiding 
officer.
    2. Upon referral of the complaint pursuant to this section, the 
presiding officer shall promptly serve on defendant, in the manner 
prescribed in section H., above, a notice that an initial decision will 
be issued under this section.
    3. Upon referral of the complaint pursuant to this section, the 
presiding officer shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under section C., above, the 
presiding officer shall issue an initial decision imposing penalties and 
assessments under the statute.
    4. Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under subsection 3. of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    5. If, before such an initial decision becomes final, the defendant 
files a motion with the presiding officer seeking to reopen on the 
grounds that good cause prevented the defendant from filing an answer, 
the initial decision shall be stayed pending the presiding officer's 
decision on the motion.
    6. If, on a motion brought under subsection J.5., above, the 
defendant can demonstrate good cause excusing the failure to file a 
timely answer, the presiding officer shall withdraw the initial decision 
in subsection 3. of this section if such a decision has been issued, and 
shall grant the defendant an opportunity to answer the complaint.
    7. A decision of the presiding officer denying a defendant's motion 
under subsections 5. and 6. of this section is not subject to 
reconsideration under section LL., below.
    8. The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the presiding officer denies the 
motion. The timely filing of a notice of appeal shall stay the initial 
decision until the authority head decides the issue.
    9. If the defendant files a timely notice of appeal with the 
authority head, the presiding officer shall forward the record of the 
proceeding to the authority head.
    10. The authority head shall decide expeditiously whether good cause 
excused the defendant's failure to file a timely answer based solely on 
the record before the presiding officer.
    11. If the authority head decides that good cause excused the 
defendant's failure to file a timely answer, the authority head shall 
remand the case to the presiding officer with instructions to grant the 
defendant an opportunity to answer.
    12. If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall approve 
the initial decision of the presiding officer, which shall become final 
and binding upon the parties 30 days after the authority head issues 
such decision.

      K. Referral of Complaint and Answer to the Presiding Officer

    1. Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the presiding officer.
    2. To allow time for settlement, referral of complaint and answer to 
the presiding officer may be delayed for a reasonable period of time if 
there is a written agreement of the

[[Page 669]]

parties, approved by the authority head, in favor of such delay.

                          L. Notice of Hearing

    1. When the presiding officer receives the complaint and answer, the 
presiding officer shall promptly serve a notice of hearing upon the 
defendant in the manner prescribed by section H., above. At the same 
time, the presiding officer shall send a copy of such notice to the 
representative for the Government.
    2. Such notice shall include:
    a. The tentative time and place, and the nature of the hearing;
    b. The legal authority and jurisdiction under which the hearing is 
to be held;
    c. The matters of fact and law to be asserted;
    d. A description of the procedures for the conduct of the hearing;
    e. The name, address, and telephone number of the representative of 
the Government, the defendant, and other parties, if any; and
    f. Such other matters as the presiding officer deems appropriate.

                        M. Parties to the Hearing

    The parties to the hearing shall be the defendant and the authority. 
The reviewing official of each authority shall, with the concurrence of 
the DoD Component head, designate attorneys within that authority to 
represent the authority in hearings conducted under this part. Attorneys 
appointed as authority representatives shall remain under the 
supervision of their DoD Component.

                       N. Separation of Functions

    1. The investigating official and the reviewing official, for any 
particular case or factually related case, may not do the following:
    a. Participate in the hearing as the presiding officer;
    b. Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in a public proceeding; or
    c. Make the collecting of penalties and assessments under 31 U.S.C. 
3806.
    2. The presiding officer shall not be responsible to, or subject to 
the supervision or direction of, the investigating official or the 
reviewing official.
    3. Except as provided in subsection 1. of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.

                          O. Ex parte Contacts

    No party or person (except employees of the presiding officer's 
office) shall communicate in any way with the presiding officer on any 
matter at issue in a case unless on notice and there is an opportunity 
for all parties to participate. This provision does not prohibit a 
person or party from inquiring about the status of a case or asking 
routine questions concerning administrative functions or procedures.

     P. Disqualification of Presiding Officer and Reviewing Official

    1. A reviewing official or presiding officer in a particular case 
may disqualify himself or herself at any time.
    2. A party may file a motion for disqualification of the presiding 
officer or the reviewing official. Such motion, to be filed with the 
presiding officer, shall be accompanied by an affidavit alleging 
personal bias or other reason for disqualification.
    3. Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification or such 
objections shall be deemed waived.
    4. Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    5. Upon the filing of such a motion and affidavit, the presiding 
officer shall proceed no further in the case until he or she resolves 
the matter of disqualification by taking one of the following actions:
    a. If the presiding officer determines that a reviewing official is 
disqualified, the presiding officer shall dismiss the complaint without 
prejudice;
    b. If the presiding officer disqualifies himself or herself, the 
case shall be reassigned promptly to another presiding officer;
    c. The presiding officer may deny a motion to disqualify. In such 
event, the authority head may determine the matter only as part of his 
or her review of the initial decision upon appeal, if any.

                          Q. Rights of Parties

    Except as otherwise limited by this enclosure, all parties may:
    1. Be accompanied, represented, and advised by a representative;
    2. Participate in any conference held by the presiding officer;
    3. Conduct discovery;
    4. Agree to stipulations of fact or law, which shall be made part of 
the record;
    5. Present evidence relevant to the issues at the hearing;
    6. Present and cross-examine witnesses;
    7. Present oral arguments at the hearing, as permitted by the 
presiding officer; and

[[Page 670]]

    8. Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.

                  R. Authority of the Presiding Officer

    1. The presiding officer shall conduct a fair and impartial hearing, 
avoid delay, maintain order, and assure that a record of the proceeding 
is made.
    2. The presiding officer has the authority to do the following:
    a. Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    b. Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    c. Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    d. Administer oaths and affirmations;
    e. Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    f. Rule on motions and other procedural matters;
    g. Regulate the scope and timing of discovery;
    h. Regulate the course of the hearing and the conduct of 
representatives and parties;
    i. Examine witnesses;
    j. Receive, rule on, exclude, or limit evidence;
    k. Upon motion of a party, take official notice of facts;
    l. Upon motion of a party, decide cases, in whole or in part by 
summary judgment where there is no disputed issue of material fact;
    m. Conduct any conference, argument, or hearing on motions in person 
or by telephone; and
    n. Exercise such other authority as is necessary to carry out the 
responsibilities of the presiding officer under this Directive.
    3. The presiding officer does not have the authority to find Federal 
statutes or regulations invalid.

                        S. Prehearing Conferences

    1. The presiding officer may schedule prehearing conferences as 
appropriate.
    2. Upon the motion of any party, the presiding officer shall 
schedule at least one prehearing conference at a reasonable time in 
advance of the hearing.
    3. The presiding officer may use prehearing conferences to discuss 
the following:
    a. Simplification of the issues;
    b. The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    c. Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    d. Whether the parties can agree to submission of the case on a 
stipulated record;
    e. Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objections of 
other parties) and written argument;
    f. Limitation of the number of witnesses;
    g. Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    h. Discovery;
    i. The time and place for the hearing; and
    j. Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    4. The presiding officer may issue an order containing all matters 
agreed upon by the parties or ordered by the presiding officer at a 
prehearing conference.

                       T. Disclosure of Documents

    1. Upon written request to the reviewing official, the defendant may 
review any relevant and material documents, transcripts, records, and 
other materials that relate to the allegations set out in the complaint 
and upon which the findings and conclusions of the investigating 
official under subsection D.2., above, are based, unless such documents 
are subject to a privilege under Federal law. Upon payment of fees for 
duplication, the defendant may obtain copies of such documents.
    2. Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed, except if disclosure would violate Rule 6(e) of the Federal 
Rules of Criminal Procedure.
    3. The notice sent to the Attorney General from the reviewing 
official as described in section E., above, is not discoverable under 
any circumstances.
    4. The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section at any time after 
service of the complaint.

                              U. Discovery

    1. The following types of discovery are authorized:
    a. Requests for production of documents for inspection and copying;
    b. Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    c. Written interrogatories; and
    d. Depositions.
    2. For the purpose of this section and sections V. and W., below, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers,

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and other data and documentary evidence contained in a form contemplated 
by the definition of ``document'' set forth in the Federal Rules of 
Civil Procedure, Rule 34. Nothing contained herein shall be interpreted 
to require the creation of a document.
    3. Unless mutually agreed to by the parties, discovery is available 
only as ordered by the presiding officer. The presiding officer shall 
regulate the timing of discovery.
    4. Motions for discovery may be filed with the presiding officer by 
the party seeking discovery.
    a. Such a motion shall be accompanied by a copy of the requested 
discovery, or in the case of depositions, a summary of the scope of the 
proposed deposition.
    b. Within 10 days of service, a party may file an opposition to the 
motion and/or a motion for protective order as provided in section X., 
below.
    c. The presiding officer may grant a motion of discovery only if he 
finds that the discovery sought:
    (1) Is necessary for the expeditious, fair, and reasonable 
consideration of the issue;
    (2) Is not unduly costly or burdensome;
    (3) Will not unduly delay the proceeding; and
    (4) Does not seek privileged information.
    d. The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    e. The presiding officer may grant discovery subject to a protective 
order under section X., below.
    5. Depositions
    a. If a motion for deposition is granted, the presiding officer 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held. The presiding officer may order that 
parties produce deponents and/or documents without the need for 
subpoena.
    b. The party seeking to depose shall serve the subpoena in the 
manner prescribed in section H., above.
    c. The deponent may file with the presiding officer a motion to 
quash the subpoena or a motion for a protective order within 10 days of 
service.
    d. The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all parties for inspection and copying.
    6. Each party shall bear its own costs of discovery.

         V. Exchange of Witness Lists, Statements, and Exhibits

    1. At least 15 days before the hearing or at such other time as may 
be ordered by the presiding officer, the parties shall exchange witness 
lists, copies of prior statements of proposed witnesses, and copies of 
proposed hearing exhibits, including copies of any written statements 
that the party intends to offer in lieu of live testimony in accordance 
with subsection GG.2., below. At the time the above documents are 
exchanged, any party that intends to rely upon the transcript of 
deposition testimony in lieu of live testimony at the hearing, if 
permitted by the presiding officer, shall provide each party with a copy 
of the specific pages of the transcript it intends to introduce into 
evidence.
    2. If a party objects, the presiding officer shall not admit into 
evidence the testimony of any witness whose name does not appear on the 
witness list or any exhibit not provided to the opposing party as 
provided above unless the presiding officer finds good cause for the 
failure or that there is no prejudice to the objecting party.
    3. Unless another party objects within the time set by the presiding 
officer, documents exchanged in accordance with subsection 1. of this 
section shall be admitted into evidence at the hearing. Later challenges 
to admissibility at the hearing shall be permitted only upon a showing 
of good cause for the lateness.

                 W. Subpoenas for Attendance at Hearing

    1. A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the presiding officer issue a 
subpoena.
    2. A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    3. A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing, unless 
otherwise allowed by the presiding officer for good cause shown. Such 
request shall specify any documents to be produced and shall designate 
the witnesses and describe the address and location thereof with 
sufficient particularity to permit such witnesses to be found.
    4. The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    5. The party seeking the subpoena shall serve it in the manner 
prescribed in section H., above. A subpoena on a party or upon an 
individual under the control of a party may be served by first class 
mail.
    6. A party or a representative of the individual to whom the 
subpoena is directed may file with the presiding officer a motion to 
quash the subpoena with 10 days after service or on or before the time 
specified in the subpoena for compliance if it is less than 10 days 
after service.

[[Page 672]]

                           X. Protective Order

    1. A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    2. In issuing a protective order, the presiding officer may make any 
order that justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense including one or 
more of the following:
    a. That the discovery not be had;
    b. That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    c. That the discovery may be had only through a method of discovery 
other than that requested;
    d. That classified information not be released unless prior notice 
and arrangements reasonably acceptable to the representative of the 
authority are made in coordination with the Defense Investigative 
Service, and the presiding officer agrees to the use;
    e. That certain matters not be inquired into or that the scope of 
discovery be limited to certain matters;
    f. That discovery be conducted with no person except persons 
designated by the presiding officer;
    g. That the contents of discovery or evidence be sealed;
    h. That the defendant comply with 32 CFR part 97 concerning official 
witnesses;
    i. That a deposition after being sealed be opened only upon order of 
the presiding officer;
    j. That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    k. That the parties simultaneously file specified documents of 
information enclosed in sealed envelopes to be opened as directed by the 
presiding officer.

                                 Y. Fees

    The party requesting a subpoena shall pay the cost of the witness 
fees and mileage of any witness subpoenaed in the amounts that would be 
payable to a witness in a proceeding in the United States District 
Court. A check for witness fees and mileage shall accompany the subpoena 
when served, except that when a subpoena is issued on behalf of the 
authority a check for witness fees and mileage need not accompany the 
subpoena.

                 Z. Form, Filing, and Service of Papers

    1. Form
    a. Documents filed with the presiding officer shall include an 
original and two copies.
    b. Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the presiding officer, and a designation of the paper (e.g., motion 
to quash subpoena).
    c. Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of, the party or the person on whose 
behalf the paper was filed, or his or her representative.
    d. Papers are considered filed when they are mailed. Date of mailing 
may be established by a certificate from the party or its representative 
or by proof that the document was sent by certified or registered mail.
    2. Service. A party filing a document with the presiding officer 
shall, at the time of filing, serve a copy of such document on every 
other party. Service upon any party of any document other than those 
required to be served as prescribed in section H., above, shall be made 
by delivering a copy or by placing a copy of the document in the United 
States mail, postage prepaid and addressed to the party's last known 
address. When a party is represented by a representative, service shall 
be made upon such representative in lieu of the actual party.
    3. Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.

                         AA. Computation of Time

    1. In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    2. When the period of time allowed is less than 7 days, intermediate 
Saturdays, Sundays, and legal holidays observed by the Federal 
Government shall be excluded from the computation.
    3. Where a document has been served or issued by placing it in the 
mail, an additional 5 days will be added to the time permitted for any 
response.

                               BB. Motions

    1. Any application to the presiding officer for an order or ruling 
shall be by motion. Motions shall state the relief sought, the authority 
relied upon, the facts alleged, and shall be filed with the presiding 
officer and served on all other parties.
    2. Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The presiding officer may 
require the oral motions be put in writing.

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    3. Within 15 days after a written motion is served, or such other 
time as may be fixed by the presiding officer, any party may file a 
response to such motion.
    4. The presiding officer may not grant a written motion before the 
time for filing responses thereto has expired, except upon consent of 
the parties or following a hearing on the motion, but may overrule or 
deny such motion without awaiting a response.
    5. The presiding officer shall make a reasonable effort to dispose 
of all outstanding motions prior to the beginning of the hearing.
    6. Failure by a party to raise defenses or objections or to make 
requests that must be made prior to the beginning of the hearing shall 
constitute waiver thereof, but the presiding officer may grant relief 
from the waiver for good cause shown.

                              CC. Sanctions

    1. The presiding officer may sanction a person, including any party 
or representative, for the following:
    a. Failing to comply with an order, rule, or procedure governing the 
proceeding;
    b. Failing to prosecute or defend an action; or
    c. Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    2. Any such sanction, including but not limited to those listed in 
subsections 3., 4., and 5. of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    3. When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the presiding officer may:
    a. Draw an inference in favor of the requesting party with regard to 
the information sought;
    b. In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    c. Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    d. Strike any part of the pleadings or other submission of the party 
failing to comply with such request.
    4. If a party fails to prosecute or defend an action under this part 
commenced by service of a notice of hearing, the presiding officer may 
dismiss the action or may issue an initial decision imposing penalties 
and assessments.
    5. The presiding officer may refuse to consider any motion, request, 
response, brief, or other document that is not filed in a timely 
fashion.

                   DD. The Hearing and Burden of Proof

    1. The presiding officer shall conduct a hearing on the record in 
order to determine whether the defendant is liable for a civil penalty 
or assessment under section C., above, and, if so, the appropriate 
amount of any such civil penalty or assessment considering any 
aggravating or mitigating factors.
    2. The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    3. The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    4. The hearing shall be open to the public unless otherwise ordered 
by the presiding officer for good cause shown.

         EE. Determining the Amount of Penalties and Assessments

    In determining an appropriate amount of civil penalties and 
assessments, the presiding officer and the authority head, upon appeal, 
should evaluate any circumstances that mitigate or aggravate the 
violation and should articulate in their opinions the reasons that 
support the penalties and assessments they impose.

                         FF. Location of Hearing

    1. The hearing may be held as follows:
    a. In any judicial district of the United States in which the 
defendant resides or transacts business;
    b. In any judicial district of the United States in which the claim 
or statement at issue was made; or
    c. In such other place, including foreign countries, as may be 
agreed upon by the defendant and the presiding officer.
    2. Each party shall have the opportunity to petition the presiding 
officer with respect to the location of the hearing.
    3. The hearing shall be held at the place and at the time ordered by 
the presiding officer.

                              GG. Witnesses

    1. Except as provided in subsection 2. of this section, testimony at 
the hearing shall be given orally by witnesses under oath or 
affirmation.
    2. At the discretion of the presiding officer, testimony may be 
admitted in the form of a written or videotaped statement or deposition. 
Any such written or videotaped statement must be provided to all other 
parties along with the last known address of such witness, in a manner 
which allows sufficient time for other parties to subpoena such witness 
for deposition or cross-examination at the hearing. Prior written or 
videotaped statements of witnesses proposed to testify at the hearings 
and deposition transcripts shall be exchanged as provided in subsection 
V.1., above.

[[Page 674]]

    3. The presiding officer shall exercise reasonable control over the 
mode and order of interrogating witnesses and presenting evidence so as 
to:
    a. Make the interrogation and presentation effective for the 
ascertainment of the truth;
    b. Avoid needless consumption of time; and
    c. Protect witnesses from harassment or undue embarrassment.
    4. The presiding officer shall permit the parties to conduct such 
cross-examination as may be required for a full and true disclosure of 
the facts.
    5. At the discretion of the presiding officer, a witness may be 
cross-examined on matters relevant to the proceeding without regard to 
the scope of his or her direct examination.
    6. Upon motion of any party, the presiding officer shall order 
witnesses excluded so that they cannot hear the testimony of other 
witnesses. This rule does not authorize exclusion of the following:
    a. A party who is an individual;
    b. In the case of a party that is not an individual, an officer or 
employee of the party appearing for the party as its representative, or 
designated by the party's representative; or
    c. An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.

                              HH. Evidence

    1. The presiding officer shall determine the admissibility of 
evidence.
    2. Except as provided herein, the presiding officer shall not be 
bound by the Federal Rules of Evidence. However, the presiding officer 
may apply the Federal Rules of Evidence where appropriate; e.g., to 
exclude unreliable evidence.
    3. The presiding officer shall exclude irrelevant and immaterial 
evidence.
    4. Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by consideration of undue delay or needless 
presentation of cumulative evidence.
    5. Evidence shall be excluded if it is privileged under Federal law 
and the holder of the privilege asserts it.
    6. Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    7. The presiding officer shall permit the parties to introduce 
rebuttal witnesses and evidence.
    8. All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the presiding officer pursuant to section X., above.

                       II. The Record and Finding

    1. The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the presiding officer at a cost not 
to exceed the actual cost of duplication.
    2. The transcript of testimony, exhibits, and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the presiding 
officer and the authority head.
    3. The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the presiding 
officer.
    4. Funding for the hearing and record, except for the cost of the 
presiding officer, shall be the responsibility of the authority in which 
the case arose.

                         JJ. Post-hearing Briefs

    The presiding officer may require or permit the parties to file 
post-hearing briefs. The presiding officer shall fix the time for filing 
any such briefs, not to exceed 60 days from the date the parties receive 
the transcript of the hearing or, if applicable, the stipulated record. 
Such briefs may be accompanied by proposed findings of fact and 
conclusions of law. The presiding officer may permit the parties to file 
reply briefs.

                          KK. Initial Decision

    1. The presiding officer shall issue an initial decision based only 
on the record that shall contain findings of fact, conclusions of law, 
and the amount of any penalties and assessments imposed.
    2. The findings of fact shall include a finding on each of the 
following issues:
    a. Whether the claims or statements identified in the complaint, or 
any portions thereof, violate section C., above; and
    b. If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments.
    3. The presiding officer shall promptly serve the initial decision 
on all parties within 90 days after the time for submission of post-
hearing briefs and reply briefs (if permitted) has expired. The 
presiding officer shall at the same time serve all parties with a 
statement describing the right of any defendant determined to be liable 
for a civil penalty or assessment to file a motion for reconsideration 
with the presiding officer or a notice of appeal with the authority 
head. If the presiding officer fails to meet the deadline contained in 
this subsection, he or she shall notify the parties of the reason for 
the delay and shall set a new deadline.
    4. Unless the initial decision of the presiding officer is timely 
appealed to the authority head, or a motion for reconsideration

[[Page 675]]

of the initial decision is timely filed, the initial decision of the 
presiding officer shall be final and binding on the parties 30 days 
after it is issued by the presiding officer.

                 LL. Reconsideration of Initial Decision

    1. Except as provided in subsection 4. of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of service of the initial decision in the manner set forth in 
section H., above, for service of the complaint. Service shall be proved 
in the manner provided in subsection H.2., above.
    2. Every such motion must set forth the matters claimed to have been 
erroneously decided and the nature of the alleged errors. Such motion 
shall be accompanied by a supporting brief.
    3. Responses to such motions shall be allowed only upon request of 
the presiding officer; however, the presiding officer shall not issue a 
revised initial determination without affording both parties an 
opportunity to be heard on the motion for reconsideration.
    4. No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    5. The presiding officer may dispose of a motion for reconsideration 
by denying it or by issuing a revised initial decision.
    6. If the presiding officer denies a motion for reconsideration, the 
initial decision shall constitute the final decision of the authority 
head and shall be final and binding on the parties 30 days after the 
presiding officer denies the motion, unless the initial decision is 
timely appealed to the authority head in accordance with section MM., 
below.
    7. If the presiding officer issues a revised initial decision, that 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after it is issued, 
unless it is timely appealed to the authority head in accordance with 
section MM., below.

                      MM. Appeal to Authority Head

    1. Any defendant who has filed a timely answer and who is determined 
in an initial decision to be liable for a civil penalty or assessment 
may appeal such decision to the authority head by filing a notice of 
appeal with the authority head in accordance with this section.
    2. A notice of appeal:
    a. May be filed at any time within 30 days after the presiding 
officer issues an initial or a revised initial decision. If another 
party files a motion for reconsideration under section LL., above, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration, until the time period for 
filing a motion for reconsideration under section LL., above, has 
expired or the motion is resolved;
    b. If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the presiding officer denies 
the motion or issues a revised initial decision, whichever applies;
    c. The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    3. If the defendant files a timely notice of appeal with the 
authority head, the presiding officer shall forward the record of the 
proceeding to the authority head when:
    a. The time for filing a motion for reconsideration expires without 
the filing of such a motion, or
    b. The motion for reconsideration is denied. Issuance of a revised 
initial decision upon motion for reconsideration shall require filing of 
a new notice of appeal.
    4. A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    5. The representative for the Government may file a brief in 
opposition to the exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    6. There is no right to appear personally before the authority head, 
although the authority head may at his or her discretion require the 
parties to appear for an oral hearing on appeal.
    7. There is no right to appeal any interlocutory ruling by the 
presiding officer.
    8. In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the presiding officer, 
unless a demonstration is made of extraordinary circumstances causing 
the failure to raise the objection.
    9. If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at such hearing is material 
and that there were reasonable grounds for the failure to present such 
evidence at such hearing, the authority head shall remand the matter to 
the presiding officer for consideration of such additional evidence.
    10. The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the presiding 
officer in any initial decision.
    11. The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or assessment to seek judicial review.
    12. Unless a petition for review is filed as provided in 32 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the

[[Page 676]]

date on which the authority head serves the defendant with a copy of the 
authority head's decision, a determination that a defendant is liable 
under section C., above, is final and is not subject to judicial review.
    13. The authority heads (or their designees) may designate an 
officer or employee of the authority, who is serving in the grade of GS-
17 or above under the General Schedule, or in the Senior Executive 
Service, to carry out these appellate responsibilities; however, the 
authority to compromise, settle, or otherwise discretionarily dispose of 
the case on appeal provided pursuant to subsection MM.10, hereof, may 
not be so redelegated pursuant to this subsection.

             NN. Stays Ordered by the Department of Justice

    If at any time, the Attorney General or an Assistant Attorney 
General designated by the Attorney General transmits to the authority 
head a written finding that continuation of the administrative process 
described in this Directive with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.

                         OO. Stay Pending Appeal

    1. An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    2. No administrative stay is available following a final decision of 
the authority head.

                          PP. Judicial Review.

    31 U.S.C. 3805 authorizes judicial review by an appropriate United 
States District Court of a final decision of the authority head imposing 
penalties or assessment under this part and specifies the procedures for 
such review.

            QQ. Collection of Civil Penalties and Assessments

    31 U.S.C. 3806 and 3808(b) authorize actions for collection of civil 
penalties and assessments imposed under this part and specify the 
procedures for such actions.

                   RR. Right to Administrative Offset

    The amount of any penalty or assessment that has become final, or 
for which a judgment has been entered under section QQ., above, or any 
amount agreed upon in a compromise or settlement under section TT., 
below, may be collected by administrative offset under 31 U.S.C. 3716, 
except that an administrative offset may not be made under this section 
against a refund of an overpayment of Federal taxes then or later owing 
by the United States to the defendant.

                SS. Deposit in Treasury of United States

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).

                      TT. Compromise or Settlement

    1. Parties may make offers of compromise or settlement at any time.
    2. The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the presiding officer issues an initial decision.
    3. The authority head has exclusive authority to compromise or 
settle a case under this Directive at any time after the date on which 
the presiding officer issues an initial decision, except during the 
pendency of any review under section PP., above, or during the pendency 
of any action to collect penalties as assessments under section QQ., 
above.
    4. The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
section PP., above, of any action to recover penalties and assessments 
under 31 U.S.C. 3806.
    5. The investigating official may recommend settlement terms to the 
reviewing official or the Attorney General, as appropriate. The 
reviewing official may recommend settlement terms to the Attorney 
General, as appropriate.
    6. Any compromise or settlement must be in writing.

                             UU. Limitations

    1. The notice of hearing with respect to a claim or settlement must 
be served in the manner specified in section H., above, within 6 years 
after the date on which such claim or statement is made.
    2. If the defendant fails to file a timely answer, service of a 
notice under subsection J.2., above, shall be deemed a notice of hearing 
for purposes of this section.
    3. If at any time during the course of proceedings brought pursuant 
to this section, the authority head receives or discovers any specific 
information concerning bribery, gratuities, conflict of interest, or 
other corruption or similar activity in relation to a false claim or 
statement, the authority head shall immediately report such information 
to the Attorney General and to the Inspector General, Department of 
Defense.

[[Page 677]]

                             VV. Delegations

    The General Counsel for the Department of Defense is designated to 
carry out the reponsibilities of the authority head of the Department of 
Defense for the issuance of additional implementing regulations that are 
necessary to implement PFCRA and this part to decide cases upon appeal, 
and to hire or designate employees of the Department of Defense to 
decide cases on appeal. The General Counsel, Department of Defense, is 
also designated to appoint presiding officers for the Department of 
Defense, and may assist in the appointment of presiding officers on 
detail from other Agencies for all authorities within the Department of 
Defense.



PART 282_PROCEDURES FOR SETTLING PERSONNEL AND GENERAL CLAIMS AND 
PROCESSING ADVANCE DECISION REQUESTS--Table of Contents




Sec.
282.1 Purpose.
282.2 Applicability and scope.
282.3 Definitions.
282.4 Policy.
282.5 Responsibilities.

Appendix A to Part 282--Guidance
Appendix B to Part 282--Claims Description
Appendix C to Part 282--Submitting a Claim
Appendix D to Part 282--Processing a Claim
Appendix E to Part 282--Appeals
Appendix F to Part 282--Requests for an Advance Decision

    Authority: 5 U.S.C. 552; 10 U.S.C. 2575; 10 U.S.C. 2771; 10 U.S.C. 
4712; 10 U.S.C. 9712; 24 U.S.C. 420; 31 U.S.C. 3529; 31 U.S.C. 3702; 32 
U.S.C. 714; and 37 U.S.C. 554.

    Source: 69 FR 38843, June 29, 2004, unless otherwise noted.



Sec. 282.1  Purpose.

    This part implements policy under 32 CFR part 281 and prescribes 
procedures for processing and settling personnel and general claims 
under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 
U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, 32 U.S.C. 714 and for 
processing requests for an advance decision under 31 U.S.C. 3529.



Sec. 282.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in the Department of Defense (hereafter referred 
to collectively as ``the DoD Components'').
    (b) The Coast Guard, when it is not operating as a Service in the 
Navy under agreement with the Department of Homeland Security, and the 
Commissioned Corps of the Public Health Service (PHS) and the National 
Oceanic and Atmospheric Administration (NOAA), under agreements with the 
Departments of Health and Human Services and Commerce (hereafter 
referred to collectively as ``the non-DoD Components'').



Sec. 282.3  Definitions.

    (a) Armed Forces. The Army, the Navy, the Air Force, the Marine 
Corps, and the Coast Guard.
    (b) Claim. A demand for money or property under one of the following 
statutes: 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 
10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, or 32 U.S.C. 714.
    (c) Committee. The person or persons invested, by order of a proper 
court, with the guardianship of a minor or incompetent person and /or 
the estate of a minor or incompetent person.
    (d) Component Concerned. The agency/activity (as well as the 
official designated by the Head of the agency/activity) required to 
perform the function or take the action indicated or from whose activity 
a claim arose.
    (e) Final Action. A finding by the appropriate official under this 
part concerning a claim from which there is no right to appeal or 
request reconsideration, or concerning which the time limit prescribed 
in this part for submitting an appeal or request for reconsideration has 
expired without such a submission.
    (f) Member. A member or former member of the Uniformed Services.
    (g) Secretary Concerned. The Secretary of the Army, addressing 
matters concerning the Army. The Secretary of the Navy, addressing 
matters concerning the Navy, the Marine Corps,

[[Page 678]]

and the Coast Guard when it is operating as a Service in the Navy. The 
Secretary of the Air Force, addressing matters concerning the Air Force. 
The Secretary of Homeland Security, addressing matters concerning the 
Coast Guard when it is not operating as a Service in the Navy. The 
Secretary of Health and Human Services, addressing matters concerning 
the PHS. The Secretary of Commerce, addressing matters concerning the 
NOAA.
    (h) Settlement. A claim and the amount due that is administratively 
determined to be valid.
    (i) Uniformed Services. The Army, the Navy, the Air Force, the 
Marine Corps, the Coast Guard, and the Commissioned Corps of the PHS and 
the NOAA.



Sec. 282.4  Policy.

    It is DoD policy that:
    (a) Claims shall be settled and advance decisions rendered in 
accordance with all pertinent statutes and regulations, and after 
consideration of other relevant authorities.
    (b) This part applies to certain claim settlement and advance 
decision functions that, by statute or delegation, are vested in the 
Department of Defense or the Secretary of Defense. Appendix B to this 
part describes the claims included under these functional authorities.



Sec. 282.5  Responsibilities.

    (a) The General Counsel of the Department of Defense (GC, DoD), or 
designee, shall:
    (1) Upon the request of the Director, Defense Office of Hearings and 
Appeals (DOHA), consult on, or render legal opinions concerning, 
questions of law that arise in the course of the performance of the 
Director's responsibilities under paragraph (b) of this section.
    (2) Render advance decisions under 31 U.S.C. 3529 and oversee the 
submission of requests for an advance decision arising from the activity 
of a DoD Component that are addressed to the Director of the Office of 
Personnel Management or the Administrator General Services in accordance 
with this part.
    (b) The Director, Defense Office of Hearings and Appeals (DOHA), or 
designee, under the GC, DoD (as the Director, Defense Legal Services 
Agency), shall:
    (1) Consider, and grant or deny, a request by the Secretary 
concerned under 31 U.S.C. 3702(e) to waive the time limit for submitting 
certain claims in accordance with 32 CFR part 281 and this part.
    (2) Consider appeals from an initial determination, and affirm, 
modify, reverse, or remand the initial determination in accordance with 
32 CFR part 281, this part, and relevant DoD Office of General Counsel 
opinions.
    (c) The Heads of the DoD Components, or designees, shall:
    (1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 
2771, 24 U.S.C. 420, 10 U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, and 
32 U.S.C. 714 in accordance with this part.
    (2) Ensure that requests for an advance decision that originate in 
their organizations are prepared and submitted in accordance with this 
part.
    (3) Pay claims as provided in a final action in accordance with this 
part.
    (d) The Heads of the Non-DoD Components, or designees, shall:
    (1) Process claims under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 
2771, or 37 U.S.C. 554 in accordance with this part.
    (2) Ensure that requests for an advance decision that originate in 
their organizations are prepared and submitted in accordance with this 
part.
    (3) Pay claims as provided in a final action in accordance with this 
part.

                    Appendix A to Part 282--Guidance

    (a) Submitting a claim. The procedures a claimant must follow to 
submit a claim are at Appendix C to this part.
    (b) Processing a claim. The procedures a DoD Component must follow 
in processing a claim are at Appendix D to this part.\1\
---------------------------------------------------------------------------

    \1\ Contact the appropriate non-DoD Component for the procedures it 
follows in processing a claim.
---------------------------------------------------------------------------

    (c) Appeals. The procedures for appealing initial determinations are 
at Appendix E to this part.
    (d) Disposition of claims upon settlement in general.
    (1) The appropriate official for the Component concerned shall pay a 
claim in accordance with the final action concerning the claim.

[[Page 679]]

    (2) Where state law requires, a committee must be appointed for a 
minor or incompetent person in accordance with State law before payment 
may be made.
    (e) Requests for an advance decision. Procedures for requesting an 
advance decision under 31 U.S.C. 3529 concerning the propriety of a 
payment or voucher certification related to claims addressed in this 
part are at Appendix F to this part.
    (f) Publication. In accordance with 5 U.S.C. 552, the Director, 
DOHA, or designee, shall make redacted copies of responses to requests 
for reconsideration and advance decisions by the GC, DoD, or designee, 
available for public inspection and copying at DOHA's public reading 
room and on the worldwide web.

               Appendix B to Part 282--Claims Description

    The Secretary of Defense is authorized to perform the claims 
settlement and advance decision functions for claims under the following 
statutes:
    (a) 31 U.S.C. 3702 concerning claims in general when there is no 
other settlement authority specifically provided for by law.\1\
---------------------------------------------------------------------------

    \1\ This includes claims involving Uniformed Services members' pay, 
allowances, travel, transportation, payment for unused accrued leave, 
retired pay, and survivor benefits, and claims for refund by carriers 
for amounts collected from them for loss or damage to property they 
transported at Government expense; also included are other claims 
arising from the activity of a DoD Component. However, the Director of 
the Office of Personnel Management performs these functions for claims 
involving civilian employees' compensation and leave; and the 
Administrator of General Services performs these functions for claims 
involving civilian employees' travel, transportation, and relocation 
expenses.
---------------------------------------------------------------------------

    (b) 10 U.S.C. 2575 concerning the disposition of unclaimed personal 
property on a military installation.
    (c) 10 U.S.C. 2771 concerning the final settlement of accounts of 
deceased members of the Armed Forces (but not the National Guard).\2\
---------------------------------------------------------------------------

    \2\ Claims under this statute are actually settled under the 
authority in 31 U.S.C. 3702 because there is no specific settlement 
authority in the statute.
---------------------------------------------------------------------------

    (d) 24 U.S.C. 420, 10 U.S.C. 4712, and 10 U.S.C. 9712 concerning the 
disposition of the effects of a deceased person who was subject to 
military law at a place or Command under the jurisdiction of the Army or 
the Air Force or of a deceased resident of the Armed Forces Retirement 
Home.
    (e) 37 U.S.C. 554 concerning the sale of personal property of 
members of the Uniformed Services who are in a missing status.
    (f) 32 U.S.C. 714 concerning the final settlement of accounts of 
deceased members of the National Guard.\3\
---------------------------------------------------------------------------

    \3\ Claims under this statute are actually settled under the 
authority in 31 U.S.C. 3702 because there is no specific settlement 
authority in the statute.
---------------------------------------------------------------------------

               Appendix C to Part 282--Submitting a Claim

    (a) Who May Submit a Claim. Any person (``claimant'') may submit a 
claim who has a demand for money or property against the Government 
under 31 U.S.C. 3702, 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 
U.S.C. 4712, 10 U.S.C. 9712, 37 U.S.C. 554, or 32 U.S.C. 714.
    (b) Where to Submit a Claim. A claimant must submit a claim to the 
Component concerned in accordance with guidance provided by that 
Component. A claim that is submitted somewhere other than to the 
Component concerned does not stop the running of the time limit in 
paragraph (f) of this Appendix. It is the claimant's responsibility to 
submit a claim properly.
    (c) Format of a Claim. A claimant must submit a claim in the format 
prescribed by the Component concerned. It must be written and be signed 
by the claimant (in the case of a claim on behalf of a minor or 
incompetent person, there are additional requirements explained at 
paragraph (e) of this Appendix) or by the claimant's authorized agent or 
attorney (there are additional requirements explained at paragraph (d) 
of this Appendix). In addition, it should:
    (1) Provide the claimant's mailing address.
    (2) Provide the claimant's telephone number.
    (3) State the amount claimed.
    (4) State the reasons why the Government owes the claimant that 
amount.
    (5) Have attached copies of documents referred to in the claim.
    (6) Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and belief) 
of the claimant or other persons in support of the claim.
    (d) Claim Submitted by Agent or Attorney. In addition to the 
requirements in paragraph (c) of this Appendix, a claim submitted by the 
claimant's agent or attorney must include or have attached a duly 
executed power of attorney or other documentary evidence of the agent's 
or attorney's right to act for the claimant.
    (e) Claim Submitted on Behalf of a Minor or Incompetent Person. In 
addition to the requirements in paragraph (c) of this Appendix:

[[Page 680]]

    (1) If a guardian or committee has not been appointed, a claim 
submitted on behalf of a minor or incompetent person must:
    (i) State the claimant's relationship to the minor or incompetent 
person.
    (ii) Provide the name and address of the person having care and 
custody of the minor or incompetent person.
    (iii) Include an affirmation that any moneys received shall be 
applied to the use and benefit of the minor or incompetent person, and 
that the appointment of a guardian or committee is not contemplated.
    (2) If a guardian or committee has been appointed, a claim on behalf 
of a minor or incompetent person must include or have attached a 
certificate of the court showing the appointment and qualification of 
the guardian or committee.
    (f) When to Submit a Claim. A claimant must submit a claim so that 
it is received by the Component concerned within the time limit allowed 
by statute.
    (1) Claimants must submit claims within these statutory time limits: 
\1\
---------------------------------------------------------------------------

    \1\ Under Section 501 et seq. of title 50 Appendix, United States 
Code, periods of active military service are not included in calculating 
whether a claim has been received within these statutory time limits.
---------------------------------------------------------------------------

    (i) Claims on account of Treasury checks under 31 U.S.C. 3702(c) 
must be received within 1 year after the date of issuance.
    (ii) Claims under 31 U.S.C. 3702 (b), 10 U.S.C. 2771 and 32 U.S.C. 
714 must be received within 6 years of the date the claim accrued. (A 
claim accrues on the date when everything necessary to give rise to the 
claim has occurred.) The time limit for claims of members of the Armed 
Forces that accrue during war or within 5 years before war begins, is 6 
years from the date the claim accrued or 5 years after peace is 
established, whichever is later.
    (iii) Claims under 10 U.S.C. 2575(d)(3) must be received within 5 
years after the date of the disposal of the property to which the claim 
relates.
    (iv) Claims under 24 U.S.C. 420(d)(1), 10 U.S.C. 4712, and 10 U.S.C. 
9712 must be received within 6 years after the death of the deceased 
resident.
    (v) Claims under 37 U.S.C. 554(h) must be received before the end of 
the 5-year period from the date the net proceeds from the sale of the 
missing person's personal property are covered into the Treasury.
    (2) The time limits set by statute may not be extended or waived.\2\ 
Although the issue of timeliness normally shall be raised upon initial 
submission (as explained at Appendix D to this part, paragraph (b)), the 
issue may be raised at any point during the claim settlement process.
---------------------------------------------------------------------------

    \2\ There is an exception for certain claims described in 31 U.S.C. 
3702(e). In those cases, the Secretary of Defense may waive the time 
limits in paragraph (f)(1)(ii) of this Appendix. Appendix D of this 
part, paragraph (d), explains which claims qualify and the procedures 
that apply.
---------------------------------------------------------------------------

    (g) Claimant Must Prove the Claim. The claimant must prove, by clear 
and convincing evidence, on the written record that the United States is 
liable to the claimant for the amount claimed. All relevant evidence to 
prove the claim should be presented when a claim is first submitted. In 
the absence of compelling circumstances, evidence that is presented at 
later stages of the administrative process will not be considered.

               Appendix D to Part 282--Processing a Claim

    (a) Initial Component Processing. Upon receipt of a claim, the 
Component concerned must:
    (1) Date stamp the claim on the date received.
    (2) Determine whether the claim was received within the required 
time limit (time limits are summarized at Appendix C to this part, 
paragraph (f)) and follow the procedures in paragraph (b) of this 
Appendix if the claim was not timely.
    (3) Investigate the claim.
    (4) Decide whether the claimant provided clear and convincing 
evidence that proves all or part of the claim.
    (5) Issue an initial determination that grants the claim to the 
extent proved or denies the claim, as appropriate. The initial 
determination must state how much of the claim is granted and how much 
is denied, and must explain the reasons for the determination.
    (6) Notify the claimant of the initial determination. The Component 
must send the claimant a copy of the initial determination and a notice 
that explains:
    (i) The action the Component shall take on the claim, if the initial 
determination is or becomes a final action (the finality of an initial 
determination is explained at paragraph (c) of this Appendix); and
    (ii) The procedures the claimant must follow to appeal an initial 
determination that denies all or part of the claim (those appeal 
procedures are explained at Appendix E to this part), if applicable.
    (b) Untimely Claims. When the Component concerned determines that a 
claim was not received within the statutory time limit, the Component 
must make an initial determination of untimely receipt. (The statutory 
time limits are explained in Appendix C to this part, paragraph (f).)
    (1) The initial determination must cite the applicable statute and 
explain the reasons for the finding of untimely receipt. The Component 
must send the initial determination to the claimant with a notice that:

[[Page 681]]

    (i) States the claim was not received within the statutory time 
limit and, therefore, may not be considered, unless that finding is 
reversed on appeal, and explains how the claimant may appeal the finding 
(those appeal procedures are explained at Appendix E to this part); and 
either
    (ii) If the claim does not qualify under 31 U.S.C. 3702(e), states 
that the statutory time limit may not be extended or waived; or
    (iii) If the claim does qualify under 31 U.S.C. 3702(e), states that 
the claim may be further considered only if the time limit is waived, 
and explains how the claimant may apply for a waiver. (Paragraph (d) of 
this Appendix explains which claims qualify and the procedures for 
applying for a waiver).
    (2) Except in cases where a claimant has applied under paragraph (d) 
of this Appendix to request a waiver of the time limit, the Component 
must return the claim to the claimant when the initial determination 
becomes a final action with a notice that the finding in the initial 
determination is final and, therefore, the claim may not be considered. 
If the claim qualifies under 31 U.S.C. 3702(e), the notice must also 
state that the claimant may resubmit the claim with an application under 
paragraph (d) of this Appendix.
    (c) Finality of an Initial Determination. An initial determination 
that grants all of a claim is a final action when it is issued. 
Otherwise, an initial determination (including one of untimely receipt) 
is a final action if the Component concerned does not receive an appeal 
within 30 days of the date of the initial determination (plus any 
extension of up to 30 additional days granted by the Component concerned 
for good cause shown).
    (d) Waiver of Certain Time Limits. When the Component concerned 
determines that a claim was not received within the statutory time limit 
in 31 U.S.C. 3702(b) or (c), the claimant may request a waiver of the 
time limit. Waiver is permitted only for those claims that satisfy the 
requirements of 31 U.S.C. 3702(e).\1\ This provision confers no right or 
entitlement on a claimant. It is solely within the discretion of the 
Secretary of Defense whether to grant such a waiver in a particular 
case.
---------------------------------------------------------------------------

    \1\ When this part was issued, 31 U.S.C. 3702(e) allowed time limit 
waivers only for claims up to $25,000 for Uniformed Service member's 
pay, allowances, travel, transportation, payments for unused accrued 
leave, retired pay, and survivors benefits. Since 31 U.S.C. 3702(e) 
could be amended at any time to modify these restrictions, always 
consult the current provisions of that Section to determine which claims 
are included.
---------------------------------------------------------------------------

    (1) The claim must contain the information and documents that are 
generally required for claims (those requirements are explained at 
Appendix C to this part, paragraph (c)).
    (2) The Component concerned must investigate the claim and make an 
initial determination concerning the merits of the claim.
    (3) If the initial determination grants all or part of the claim, 
and if the Secretary concerned agrees with the determination, the 
Secretary may request or recommend that the time limit be waived.\2\ 
Requests and recommendations must be in writing and signed by the 
Secretary concerned. (This authority may not be delegated below the 
level of an Assistant Secretary.)
---------------------------------------------------------------------------

    \2\ 31 U.S.C. 3702(e) currently requires a Secretarial request only 
in the case of a claim by or with respect to a member of the Uniformed 
Services who is not under the jurisdiction of the Secretary of a 
Military Department. As a matter of policy, the Department of Defense 
currently requires a Secretarial recommendation in all other cases.
---------------------------------------------------------------------------

    (i) The Secretary concerned shall forward the request or 
recommendation to the following address: Defense Office of Hearings and 
Appeals, Claims Division, P.O. Box 3656, Arlington, VA 22203-1995.
    (ii) The entire record concerning the claim, including the initial 
determination, must be attached to the request.
    (4) The Director, DOHA, must review the request and the written 
record and must:
    (i) Grant the request and waive the statutory time limit, if the 
Director finds that all or part of the claim has been proven. The 
Director may also modify the finding concerning the amount of the claim 
that has been proven.
    (ii) Deny the request, if the Director finds that no part of the 
claim has been proven.
    (iii) Notify the Secretary concerned and the claimant of the 
decision and the reasons for the findings.
    (5) In the event the Director, DOHA, denies the request, or grants 
the request but modifies the finding concerning the amount of the claim 
proven, the Secretary concerned or the claimant may request 
reconsideration (the procedures are explained at Appendix E to this 
part). The Director's decision is a final action if the Director does 
not receive a request for reconsideration within 30 days of the date of 
the Director's decision (plus any extension of up to 30 additional days 
granted by the Director for good cause shown).

                     Appendix E to Part 282--Appeals

    (a) Who May Appeal. A claimant may appeal if an initial 
determination denies all or part of a claim or finds that the claim was 
not received by the Component concerned within the time limit required 
by statute; however, the decision of the Secretary concerned not to 
request or recommend waiver of the time limit is not appealable except 
to

[[Page 682]]

the Secretary concerned, if the Secretary as a matter of discretion 
provides for such appeals.
    (b) When and Where to Submit an Appeal. A claimant's appeal must be 
received by the Component concerned within 30 days of the date of the 
initial determination. The Component may extend this period for up to an 
additional 30 days for good cause shown. No appeal may be accepted after 
this time has expired. An appeal sent directly to the DOHA is not 
properly submitted.
    (c) Content of an Appeal. No specific format is required; however, 
the appeal must be written and be signed by the claimant, the claimant's 
authorized agent, or the claimant's attorney. It also should:
    (1) Provide the claimant's mailing address;
    (2) Provide the claimant's telephone number;
    (3) State the amount claimed on appeal, or that the appeal is from a 
finding of untimely receipt, whichever applies;
    (4) Identify specific:
    (i) Errors or omissions of material and relevant fact;
    (ii) Legal considerations that were overlooked or misapplied; and
    (iii) Conclusions that were arbitrary, capricious, or an abuse of 
discretion;
    (5) Present evidence of the correct or additional facts alleged;
    (6) Explain the reasons the findings or conclusions should be 
reversed or modified;
    (7) Have attached copies of documents referred to in the appeal; and
    (8) Include or have attached statements (that are attested to be 
true and correct to the best of the individual's knowledge and belief) 
by the claimant or other persons in support of the appeal.
    (d) Component's Review. The Component concerned must review a 
claimant's appeal, and affirm, modify, or reverse the initial 
determination.
    (1) If the appeal concerns the denial of all or part of the claim 
and the Component grants the entire claim, or grants the claim to the 
extent requested in the appeal, the Component must notify the claimant 
in writing and explain the action the Component shall take on the claim. 
This is a final action.
    (2) If the appeal concerns the untimely receipt of the claim and the 
Component determines that the claim was received within the time limit 
required by statute, the Component must notify the claimant in writing 
and process the claim on the merits.
    (3) In all other cases, the Component must forward the appeal to the 
DOHA in accordance with paragraph (e) of this Appendix. If the appeal 
concerns an initial determination of untimely receipt, the Component 
should not investigate, or issue an initial determination concerning, 
the merits of the claim before forwarding the appeal. The Component must 
prepare a recommendation and administrative report (as explained in 
paragraph (f) of this Appendix). The Component must send a copy of the 
administrative report to the claimant, with a notice that the claimant 
may submit a rebuttal to the Component (as explained in paragraph (g) of 
this Appendix).
    (e) Submission of Appeal to DOHA. No earlier than 31 days after the 
date of the administrative report, or the day after the claimant's 
rebuttal period, as extended, expires, the Component must send the 
entire record along with the recommendation and the administrative 
report required by paragraph (f) of this Appendix to the following 
address: Defense Office of Hearings and Appeals, Claims Division, P.O. 
Box 3656, Arlington, Virginia 22203-1995.
    The record sent to the DOHA shall include specific identification of 
any major policy issue(s) and a statement as to whether the amount in 
controversy exceeds $100,000 either in the instant claim or in the 
aggregate for directly related claims. If the amount in controversy 
exceeds $100,000, a full description of the financial impact shall be 
provided.
    (f) Recommendation and Administrative Report. The recommendation and 
administrative report required by paragraph (d) of this Appendix must 
include the following:
    (1) The name of the claimant;
    (2) The Component's file reference number;
    (3) The Component's recommendation (and the reasons for it) for the 
disposition of the claim;
    (4) Relevant and material documents (such as correspondence, 
business records, and witness statements), as attachments; and
    (5) Complete copies of regulations, instructions, memorandums of 
understanding, tariffs and/or tenders, solicitations, contracts, or 
rules cited by the claimant or the Component, if a copy has not been 
previously provided, or is not available readily via electronic means.
    (g) Claimant's Rebuttal. A claimant may submit a written rebuttal, 
signed by the claimant or the claimant's agent or attorney, in response 
to the recommendation and administrative report. The rebuttal must be 
submitted to the Component within 30 days of the date of the 
recommendation and administrative report. The Component may grant an 
extension of up to an additional 30 days for good cause shown. The 
rebuttal should include:
    (1) An explanation of the points and reasons for disagreeing with 
the report;
    (2) The Component's file reference number;
    (3) Any documents referred to in the rebuttal; and
    (4) Statements (that are attested to be true and correct to the best 
of the individual's knowledge and belief) by the claimant or other 
persons in support of the rebuttal.

[[Page 683]]

    (h) Action by the Component. The Component must:
    (1) Date stamp the claimant's rebuttal on the date it is received;
    (2) Send the entire record to the DOHA, but no earlier than 31 days 
after the date of the report, or the day after the claimant's rebuttal 
period, as extended, expires (as explained in paragraph (e) of this 
Appendix).
    (i) DOHA Appeal Decision. Except as provided in paragraph (p) of 
this Appendix, the DOHA must base its decision on the written record, 
including the recommendation and administrative report and any rebuttal 
by the claimant. The DOHA shall coordinate its decision in advance with 
the GC, DoD when the appeal decision affects:
    (1) Major policy issues;
    (2) Involves a claim that is quasi-contractual in nature and arises 
from the activity of a DoD Component, but the claim was not settled 
under usual acquisition procedures; or
    (3) When the amounts in controversy exceed $100,000, either for the 
instant claim or in the aggregate for directly related claims. The 
written decision must:
    (i) Affirm, modify, reverse, or remand the Component's determination 
(and, if the issue is untimely receipt and there is a finding that the 
claim was timely received, may either consider and decide the claim on 
the merits or return the claim to the Component concerned for 
investigation and initial determination on the merits);
    (ii) State the amount of the claim that is granted and the amount 
that is denied and/or state that the claim was or was not received 
within the statutory time limit, as appropriate; and
    (iii) Explain the reasons for the decision.
    (j) Processing After the Appeal Decision. After issuing an appeal 
decision, the DOHA must:
    (1) Send the claimant the decision and notify the claimant of:
    (i) The appropriate Component action on the claim as a consequence 
of the decision, if it is or becomes a final action (as explained in 
paragraph (k) of this Appendix); and
    (ii) The procedures under this appendix to request reconsideration 
(as explained in paragraphs (l) through (n) of this Appendix), if the 
decision does not grant the claim to the extent requested, or does not 
contain a finding of timely receipt, as the case may be.
    (2) Notify the Component concerned of the decision, and of the 
appropriate Component action on the claim as a consequence of the 
decision.
    (k) Finality of a DOHA Appeal Decision. An appeal decision that 
finds that the claim was timely received is a final action when issued. 
Otherwise, an appeal decision is a final action if the DOHA does not 
receive a request for reconsideration within 30 days of the date of the 
appeal decision (plus any extension of up to 30 additional days granted 
by the DOHA for good cause shown). Note: In the case of a DOHA appeal 
decision issued before the effective date of this part that denied all 
or part of the claim, a request for reconsideration by the GC, DoD may 
be submitted within 60 days of the effective date of this part. The GC, 
DoD shall consider such requests and affirm, modify, reverse, or remand 
the DOHA appeal decision. Requests for reconsideration by the GC, DoD 
received more than 60 days after the effective date of this part shall 
not be accepted. Requests must be submitted to the address in paragraph 
(e) of this Appendix. The provisions of paragraph (n) of this Appendix 
apply.
    (l) Who May Request Reconsideration. A claimant or the Component 
concerned, or both, may request reconsideration of a DOHA appeal 
decision.
    (m) When and Where to Submit a Request for Reconsideration. The DOHA 
must receive a request for reconsideration within 30 days of the date of 
the appeal decision.\1\ The DOHA may extend this period for up to an 
additional 30 days for good cause shown. No request for reconsideration 
may be accepted after this time has expired. A request for 
reconsideration must be sent to the DOHA at the address in paragraph (e) 
of this Appendix.
---------------------------------------------------------------------------

    \1\ With respect to appeal decisions issued before the effective 
date of this part, the request for reconsideration by the GC, DoD must 
be received by the DOHA within 60 days of the effective date of this 
part as explained in paragraph (k) of this Appendix.
---------------------------------------------------------------------------

    (n) Content of a Request for Reconsideration. The requirements of 
paragraph (c) of this Appendix, concerning the contents of an appeal, 
apply to requests for reconsideration.
    (o) DOHA's Review of a Request for Reconsideration.
    (1) No earlier than 31 days after the date of the appeal decision, 
or the day after the last period for submitting a request, as extended, 
expires, the DOHA must:
    (i) Consider a request or requests for reconsideration;
    (ii) Affirm, modify, reverse, or remand the appeal decision (and, if 
the issue is untimely receipt and there is a finding that the claim was 
timely received, may either consider and decide the claim on the merits 
or return the claim to the Component concerned for investigation and 
initial determination on the merits);
    (iii) Prepare a response that explains the reasons for the finding; 
and
    (iv) Send the response to the claimant and the Component concerned 
and notify both of the appropriate action on the claim.
    (2) The response is a final action. It is precedent in the 
consideration of all claims

[[Page 684]]

covered by this part unless otherwise stated in the document.
    (p) Consideration of Appeals and Requests for Reconsideration. When 
considering an appeal or request for reconsideration, the DOHA may:
    (1) Take administrative notice of matters that are generally known 
or are capable of confirmation by resort to sources whose accuracy 
cannot reasonably be questioned.
    (2) Remand a matter to the Component with instructions to provide 
additional information.

        Appendix F to Part 282--Requests for an Advance Decision

    (a) Who May Request an Advance Decision. A disbursing or certifying 
official or the Head of a Component may request an advance decision on a 
question involving:
    (1) A payment the disbursing official or Head of the Component shall 
make; or
    (2) A voucher presented to a certifying official for certification.
    (b) Who May Render an Advance Decision. The following officials are 
authorized to render an advance decision concerning the matters 
indicated:
    (1) The Secretary of Defense for requests involving claims under:
    (i) 31 U.S.C. 3702 for Uniformed Services members' pay, allowances, 
travel, transportation, retired pay, and survivor benefits, and by 
carriers for amounts collected from them for loss or damage to property 
they transported at Government expense.
    (ii) 31 U.S.C. 3702 that are not described in paragraph (b)(1)(i) of 
this Appendix and that arise from the activity of a DoD Component, when 
there is no other settlement authority specifically provided by law.
    (iii) 10 U.S.C. 2575, 10 U.S.C. 2771, 24 U.S.C. 420, 10 U.S.C. 4712, 
10 U.S.C. 9712, 37 U.S.C. 554, and 32 U.S.C. 714. Appendix B to this 
part describes these claims.
    (2) The Director of the Office of Personnel Management for requests 
involving claims for civilian employees' compensation and leave.
    (3) The Administrator of General Services for requests involving 
claims for civilian employees' travel, transportation, and relocation 
expenses.
    (c) Where to Submit a Request. All requests described in paragraph 
(b)(1) of this Appendix and all other requests arising from the activity 
of a DoD Component (even if addressed to an official outside the 
Department of Defense) must be sent through the General Counsel of the 
Component concerned to the following address: General Counsel, 
Department of Defense, 1600 Defense Pentagon, Washington, DC 20301-1600.
    (d) Content of a Request. Requests for an advance decision must:
    (1) Specifically request an advance decision pursuant to 31 U.S.C. 
3529;
    (2) Describe all the relevant facts;
    (3) Explain the reasons (both factual and legal) the requester 
considers the proposed payment to be questionable;
    (4) Have attached vouchers, if any, and copies of all other relevant 
documents relating to the proposed payment;
    (5) Have attached a legal memorandum from the General Counsel of the 
Component concerned that discusses the legality of the proposed payment 
under the circumstances presented in the request; and
    (6) Comply with any other requirements established by the Director 
of the Office of Personnel Management or the Administrator of General 
Services.
    (e) Advance Decisions. The GC, DoD must take action under paragraphs 
(e)(1), (e)(2), or (e)(3) of this Appendix, whichever applies.
    (1) If the request is described in paragraph (b)(1) of this 
Appendix, the GC, DoD must review the request and issue an advance 
decision, unless the GC, DoD elects to proceed under paragraph (e)(3) of 
this Appendix.
    (i) The GC, DoD must send the decision, through the General Counsel 
of the Component concerned, to the requester, and must send a copy of 
the decision to the Director, DOHA for publication according to Appendix 
A to this part, paragraph (f).
    (ii) The decision is controlling in the case; the reliance of 
certifying and disbursing officials on it in their disposition of the 
case is evidence that those officials have exercised due diligence in 
the performance of their duties.
    (iii) An advance decision is precedent in similar claims under this 
part unless otherwise stated in the decision.
    (2) If the request is not described in paragraph (b)(1) of this 
Appendix, the GC, DoD must review the request and either:
    (i) Forward the request to the appropriate advance decision 
authority and notify the requester of that action; or
    (ii) Return the request, through the General Counsel of the 
Component concerned, to the requester, with a memorandum explaining that 
under existing legal authorities a request for an advance decision is 
not necessary. After considering the memorandum, the requester may 
resubmit the request, through the General Counsel of the Component 
concerned, to the GC, DoD. The GC, DoD must forward the request to the 
appropriate advance decision authority, and notify the requester of that 
action.
    (3) If the request is described in paragraph (b)(1) of this 
Appendix, and the claim is for not more than $250, the GC, DoD may refer 
the request to the General Counsel, Defense Finance and Accounting 
Service (DFAS). The General Counsel, DFAS, shall review the request and 
issue an advance decision.

[[Page 685]]

    (i) The General Counsel, DFAS, must send the decision, through the 
General Counsel of the Component concerned, to the requester, and must 
send a copy of the decision to the GC, DoD.
    (ii) The decision is controlling in the case; the reliance of 
certifying and disbursing officials on it in their disposition of the 
case is evidence that those officials have exercised due diligence in 
the performance of their duties.
    (iii) An advance decision issued by the General Counsel, DFAS, under 
this paragraph is not precedent in similar claims under this part.

[[Page 686]]



             SUBCHAPTER N_FREEDOM OF INFORMATION ACT PROGRAM





PART 285_D0D FREEDOM OF INFORMATION ACT (FOIA) PROGRAM--Table of Contents




Sec.
285.1 Reissuance and purpose.
285.2 Applicability and scope.
285.3 Policy.
285.4 Responsibilities.
285.5 Information requirements.

    Authority: 5 U.S.C. 552.

    Source: 62 FR 61013, Nov. 14, 1997, unless otherwise noted.



Sec. 285.1  Reissuance and purpose.

    This part:
    (a) Reissues 32 CFR part 285 to update policies and responsibilities 
for the implementation of the DOD FOIA Program under 5 U.S.C. 552.
    (b) Continues to authorize, consistent with 5 U.S.C. 552, the 
publication of 32 CFR part 286, the single DOD Regulation on the FOIA 
Program.
    (c) Continues to delegate authorities and responsibilities for the 
effective administration of the FOIA Program.

[68 FR 8825, Feb. 26, 2003]



Sec. 285.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Chairman of the Joint Chiefs of 
Staff, the Combatant Commands, the Inspector General of the Department 
of Defense, the Defense Agencies, and the DoD Field Activities 
(hereafter referred to collectively as ``the DoD Components'').
    (b) National Security Agency/Central Security Service records are 
subject to this part unless the records are exempt under section 6 of 
Pub. L. 86-36 (1959), codified at 50 U.S.C. 402 note. The records of the 
Defense Intelligence Agency, National Reconnaissance Office, and the 
National Imagery and Mapping Agency are also subject to this part unless 
the records are exempt under 10 U.S.C. 424.



Sec. 285.3  Policy.

    It is DoD policy to:
    (a) Promote public trust by making the maximum amount of information 
available to the public, in both hard copy and electronic formats, on 
the operation and activities of the Department of Defense, consistent 
with DoD responsibility to ensure national security.
    (b) Allow a requester to obtain agency records from the Department 
of Defense that are available through other public information services 
without invoking the FOIA.
    (c) Make available, under the procedures established by 32 CFR part 
286, those agency records that are requested by a member of the general 
public who explicitly or implicitly cites the FOIA.
    (d) Answer promptly all other requests for information, agency 
records, objects, and articles under established procedures and 
practices.
    (e) Release Agency records to the public unless those records are 
exempt from mandatory disclosure as outlined in 5 U.S.C. 552.
    (f) Process requests by individuals for access to records about 
themselves contained in a Privacy Act system of records under procedures 
set forth in DoD 5400.11-R,\1\ and procedures outlined in this part 
amplified by 32 CFR part 286.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.

[62 FR 61013, Nov. 14, 1997, as amended at 68 FR 8825, Feb. 26, 2003]



Sec. 285.4  Responsibilities.

    (a) The Director, Washington Headquarters Service shall:
    (1) Direct and administer the DoD FOIA Program to ensure compliance 
with policies and procedures that govern the administration of the 
program.
    (2) Issue a DoD FOIA regulation and other discretionary instructions 
and guidance to ensure timely and reasonably uniform implementation of 
the FOIA in the Department of Defense.

[[Page 687]]

    (3) Internally administer the FOIA Program for OSD, the Chairman of 
the Joint Chiefs of Staff and, as an exception to DoD Directive 
5100.3,\2\ the Combatant Commands.
---------------------------------------------------------------------------

    \2\ See footnote 1.
---------------------------------------------------------------------------

    (b) The Director, Administration and Management shall, as the 
designee of the Secretary of Defense, serve as the sole appellate 
authority for appeals to decisions of respective Initial Denial 
Authorities within OSD, the Chairman of the Joint Chiefs of Staff, the 
Combatant Commands, and the DOD Field Activities.
    (c) The General Counsel of the Department of Defense shall provide 
uniformity in the legal interpretation of this part.
    (d) The Heads of the DOD Components shall:
    (1) Publish in the Federal Register any instructions necessary for 
the internal administration of this part within a DOD Component that are 
not prescribed by this part or by other issuances of the Director, 
Washington Headquarters Services. For the guidance of the public, the 
information specified in 5 U.S.C. 552(a)(1) shall be published in 
accordance with DOD Directive 5025.1.
    (2) Conduct training on the provisions of this part, 5 U.S.C. 552, 
and 32 CFR part 286 for officials and employees who implement the FOIA.
    (3) Submit the report prescribed in subpart G of 32 CFR part 286.
    (4) Make available for public inspection and copying in an 
appropriate facility or facilities, in accordance with rules published 
in the Federal Register, the records specified in 10 U.S.C. 552(a)(2), 
unless such records are published and copies are offered for sale. These 
records shall be made available to the public in hard copy, by computer 
telecommunications, or other electronic means.
    (5) Maintain and make available for public inspection and copying 
current indices of all (a)(2) records as required by 10 U.S.C. 
552(a)(2).

[62 FR 61013, Nov. 14, 1997, as amended at 68 FR 8825, Feb. 26, 2003]



Sec. 285.5  Information requirements.

    The reporting requirements in subpart G of 32 CFR part 286 have been 
assigned Report Control Symbol DD-DA&M(a) 1365.

[68 FR 8825, Feb. 26, 2003]



PART 286_DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATION--Table of 
Contents




                      Subpart A_General Provisions

Sec.
286.1 Purpose and applicability.
286.2 DoD public information.
286.3 Definitions.
286.4 Policy.

                      Subpart B_FOIA Reading Rooms

286.7 Requirements.
286.8 Indexes.

                          Subpart C_Exemptions

286.11 General provisions.
286.12 Exemptions.

                     Subpart D_For Official Use Only

286.15 General provisions.
286.16 Markings.
286.17 Dissemination and transmission.
286.18 Safeguarding FOUO information.
286.19 Termination, disposal and unauthorized disclosure.

               Subpart E_Release and Processing Procedures

286.22 General provisions.
286.23 Initial determinations.
286.24 Appeals.
286.25 Judicial actions.

                         Subpart F_Fee Schedule

286.28 General provisions.
286.29 Collection of fees and fee rates.
286.30 Collection of fees and fee rates for technical data.

                            Subpart G_Reports

286.33 Reports control.

                    Subpart H_Education and Training

286.36 Responsibility and purpose.

Appendix A to Part 286--Combatant Commands--Processing Procedures for 
          FOIA Appeals
Appendix B to Part 286--Addressing FOIA Requests

[[Page 688]]

Appendix C to Part 286--DD Form 2086, ``Record of Freedom of Information 
          (FOI) Processing Cost''
Appendix D to Part 286--DD Form 2086-1, ``Record of Freedom of 
          Information (FOI) Processing Cost for Technical Data''
Appendix E to Part 286--DD Form 2564, ``Annual Report Freedom of 
          Information Act''
Appendix F to Part 286--DoD Freedom of Information Act Program 
          Components

    Authority: 5 U.S.C. 552.

    Source: 63 FR 65420, Nov. 25, 1998, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 286.1  Purpose and applicability.

    (a) Purpose. This part provides policies and procedures for the DoD 
implementation of the Freedom of Information Act, as amended (5 U.S.C. 
552), and DoD Directive 5400.7, \1\ and promotes uniformity in the DoD 
Freedom of Information Act (FOIA) Program.
---------------------------------------------------------------------------

    \1\ Copy may be viewed via internet at http://web7.whs.osd.mil/
corres.htm.
---------------------------------------------------------------------------

    (b) Applicability. This part applies to the Office of the Secretary 
of Defense (OSD), the Military Departments, the Chairman of the Joint 
Chiefs of Staff, the Combatant Command, the Inspector General of the 
Department of Defense (IG DoD), the Defense Agencies, and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
components''). This part takes precedence over all DoD Component 
publications that supplement and implement the DoD FOIA Program. A list 
of DoD Components is at appendix F.



Sec. 286.2  DoD public information.

    (a) Public information. (1) The public has a right to information 
concerning the activities of its Government. DoD policy is to conduct 
its activities in an open manner and provide the public with a maximum 
amount of accurate and timely information concerning its activities, 
consistent always with the legitimate public and private interests of 
the American people. A record requested by a member of the public who 
follows rules established by proper authority in the Department of 
Defense shall not be withheld in whole or in part unless the record is 
exempt from mandatory partial or total disclosure under the FOIA. As a 
matter of policy, DoD Components shall make discretionary disclosures of 
exempt records or information whenever disclosure would not foreseeably 
harm an interest protected by a FOIA exemption, but this policy does not 
create any right enforceable in court. In order that the public may have 
timely information concerning DoD activities, records requested through 
public information channels by news media representatives that would not 
be withheld if requested under the FOIA should be released upon request. 
Prompt responses to requests for information from news media 
representatives should be encouraged to eliminate the need for these 
requesters to invoke the provisions of the FOIA and thereby assist in 
providing timely information to the public. Similarly, requests from 
other members of the public for information that would not be withheld 
under the FOIA should continue to be honored through appropriate means 
without requiring the requester to involve the FOIA.
    (2) Within the OSD, the Assistant Secretary of Defense for Command, 
Control, Communications, and Intelligence, as Chief Information Officer, 
in conjunction with the Assistant Secretary of Defense for Public 
Affairs, is responsible for ensuring preparation of reference material 
or a guide for requesting records or information from the Department of 
Defense, subject to the nine exemptions of the FOIA. This publication 
shall also include an index of all major information systems, and a 
description of major information and record locator systems, as defined 
by the Office of the Assistant Secretary of Defense for Command, 
Control, Communications, and Intelligence. DoD FOIA Components shall 
coordinate with the appropriate office(s) to insure that this is also 
accomplished within their department or organization.
    (3) DoD Components shall also prepare, in addition to normal FOIA 
regulations, a handbook for the use of the public in obtaining 
information from their organization. This handbook should be a short, 
simple explanation to the public of what the FOIA is designed to do, and 
how a member of the

[[Page 689]]

public can use it to access government records. Each DoD Component 
should explain the types of records that can be obtained through FOIA 
requests, why some records cannot, by law, be made available, and how 
the DoD Component determines whether the record can be released. The 
handbook should also explain how to make a FOIA request, how long the 
requester can expect to wait for a reply, and explain the right of 
appeal. The handbook should supplement other information locator 
systems, such as the Government Information Locator Service (GILS), and 
explain how a requester can obtain more information about those systems. 
The handbook should be available on paper and through electronic means 
and contain the following additional information, complete with 
electronic links to the below elements; the location of reading room(s) 
within the Component and the types and categories of information 
available, the location of Component's World Wide Web page, a reference 
to the component's FOIA regulation and how to obtain a copy, a reference 
to the Component's FOIA annual report and how to obtain a copy and the 
location of the Component's GILS page. Also, the DoD Components' Freedom 
of Information Act Annual Reports should refer to the handbook and how 
to obtain it.
    (b) Control system. A request for records that invokes the FOIA 
shall enter a formal control system designed to ensure accountability 
and compliance with the FOIA. Any request for DoD records that either 
explicitly or implicitly cites the FOIA shall be processed under the 
provisions of this part, unless otherwise required by Sec. 286.4(m).



Sec. 286.3  Definitions.

    As used in this part, the following terms and meanings shall be 
applicable:
    Administrative appeal. A request by a member of the general public, 
made under the FOIA, asking the appellate authority of a DOD Component 
to reverse a decision: to withhold all or part of a requested record; to 
deny a fee category claim by a requester, to deny a request for waiver 
or reduction of fees; to deny a request to review an initial fee 
estimate; to deny a request for expedited processing due to demonstrated 
compelling need under Sec. 286.4(d)(3) of this part; to confirm that no 
records were located during the initial search. Requesters also may 
appeal the failure to receive a response determination within the 
statutory time limits, and any determination that the requester believes 
is adverse in nature.
    Agency record. (1) The products of data compilation, such as all 
books, papers, maps, and photographs, machine readable materials, 
inclusive of those in electronic form or format, or other documentary 
materials, regardless of physical form or characteristics, made or 
received by an agency of the United States Government under Federal law 
in connection with the transaction of public business and in Department 
of Defense possession and control at the time the FOIA request is made. 
Care should be taken not to exclude records from being considered agency 
records, unless they fall within one of the categories in paragraph (2) 
of this definition.
    (2) The following age not included within the definition of the word 
``record''.
    (i) Objects or articles, such as structures, furniture, vehicles and 
equipment, whatever their historical value, or value as evidence.
    (ii) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (iii) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily for 
the convenience of an agency employee, and not distributed to other 
agency employees for their official use. Personal papers fall into three 
categories: those created before entering Government service; private 
materials brought into, created, or received in the office that were not 
created or received in the course of transacting Government business; 
and work-related personal papers that are not used in the transaction of 
Government business (see ``Personal Papers of

[[Page 690]]

Executive Branch Officials: A Management Guide'' \2\).
---------------------------------------------------------------------------

    \2\ Available from the Records Administration Information Center, 
Agency Service Division (NIA), Washington, DC 20408.
---------------------------------------------------------------------------

    (3) A record must exist and be in the possession and control of the 
Department of Defense at the time of the request to be considered 
subject to this part and the FOIA. There is no obligation to create, 
compile, or obtain a record to satisfy a FOIA request. See Sec. 
286.4(g)(2) on creating a record in the electronic environment.
    (4) Hard copy or electronic records, that are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and that are available to the public 
through an established distribution system, or through the Federal 
Register, the National Technical Information Service, or the Internet, 
normally need not be processed under the provisions of the FOIA. If a 
request is received for such information, DoD Components shall provide 
that requester with guidance inclusive of any written notice to the 
public, on how to obtain the information. However, if the requester 
insists that the request be processed under the FOIA, then the request 
shall be processed under the FOIA. If there is any doubt as to whether 
the request must be processed, contact the Directorate for Freedom of 
Information and Security Review.
    Appellate authority. The Head of the DoD Component or the Component 
head's designee having jurisdiction for this purpose over the record, or 
any of the other adverse determinations outlined in definitions 
``Initial denial authority (IDA)'' and ``Administrative appeal''.
    DoD Component. An element of the Department of Defense, as defined 
in Sec. 286.1(b), authorized to receive and act independently on FOIA 
requests. (See appendix F of this part.) A DoD Component has its own 
initial denial authority (IDA), appellate authority, and legal counsel.
    Electronic record. Records (including e-mail) that are created, 
stored, and retrievable by electronic means.
    Federal agency. As defined by 5 U.S.C. 552(f)(1), a Federal agency 
is any executive department, military department, Government 
corporation, Government controlled corporation, or other establishment 
in the executive branch of the Government (including the Executive 
Office of the President), or any independent regulatory agency.
    FOIA request. A written request for DoD records that reasonably 
describes the record(s) sought, made by any person, including a member 
of the public (U.S. or foreign citizen/entity), an organization, or a 
business, but not including a Federal Agency or a fugitive from the law, 
that either explicitly or implicitly invokes the FOIA, DoD Directive 
5400.7, this part, or DoD Component supplementing regulations or 
instructions. Requesters should also indicate a willingess to pay fees 
associated with the processing of their request or, in the alternative, 
why a waiver of fees may be appropriate. Written requests may be 
received by postal service or other commercial delivery means, by 
fascimile, or electronically. Requests received by fascimile or 
electronically must have a postal mailing address included since it may 
be practical to provide a substantive response electrically. The request 
is considered properly received, or perfected, when the above conditions 
have been met and the request arrives at the FOIA office of the 
Component in possession of the records.
    Initial denial authority (IDA). An official who has been granted 
authority by the head of DoD component to withhold records requested 
under the FOIA for one or more of the nine categories of records exempt 
from mandatory disclosure. IDA's may also deny a fee category claim by a 
requester; deny a request for expedited processing due to demonstrated 
compelling need under Sec. 286.4(d)(3) of this part; deny a request for 
a waiver or reduction of fees; review a fee estimate; and confirm that 
no records were located in response to a request.
    Public interest. The interest in obtaining official information that 
sheds light on an agency's performance of its statutory duties because 
the information falls within the statutory purpose of the FOIA to inform 
citizens about what their Government is doing. That statutory purpose, 
however, is not fostered by disclosure of information

[[Page 691]]

about private citizens accumulated in various governmental files that 
reveals nothing about an agency's or officials own conduct.



Sec. 286.4  Policy.

    (a) Compliance with the FOIA. DoD personnel are expected to comply 
with the FOIA, this part, and DoD FOIA policy in both better and spirit. 
This strict adherence is necessary to provide uniformity in the 
implementation of the DoD FOIA Program and to create conditions that 
will promote public trust.
    (b) Openiness with the public. The Department of Defense shall 
conduct its activities in an open manner consistent with the need for 
security and aherence to other requirements of law and regulation. 
Records not exempt from disclosure under the Act shall, upon request, be 
made readily accessible to the public in accordance with rules 
promulgated by competent authority, whether or not the Act is invoked.
    (c) Avoidance of procedural obstacles. DoD Components shall ensure 
that procedural matters do not unnecessarily impede a requester from 
obtaining DoD records promptly. Components shall provide assistance to 
requesters to help them understand and comply with procedures 
established by this part and any supplemental regulations published by 
the DoD Components.
    (d) Prompt action on requests. (1) Generally, when a member of the 
public complies with the procedures established in this part and DoD 
Component regulations or instructions for obtaining DoD records, and 
after the request is received by the official designated to respond, DoD 
Components shall endeavor to provide a final response determination 
within the statutory 20 working days. If a significant number of 
requests, or the complexity of the requests prevent a final response 
determination within the statutory time period, DoD Components shall 
advise the requester of this fact, and explain how the request will be 
responded to within its multitrack processing system (see Sec. 
286.4(d)(2)). A final response determination is notification to the 
requester that the records are released, or will be released on a 
certain date, or the records are denied under the appropriate FOIA 
exemption, or the records cannot be provided for one or more of the 
other reasons in Sec. 286.23(b). Interim responses acknowledging 
receipt of the request, negotiations with the requester concerning the 
scope of the request, the response timeframe, and fee agreements are 
encouraged; however, such actions do not constitute a final response 
determination pursuant to the FOIA. If a request fails to meet minimum 
requirements as set forth in Sec. 286.3, definition ``FOIA request'', 
Components shall inform the requester how to perfect or correct the 
request. The statutory 20 working day time limit applies upon receipt of 
a perfected or correct FOIA request which complies with the requirements 
outlined in Sec. 286.3, definition ``FOIA request''.
    (2) Multitrack processing. When a Component has a significant number 
of pending requests that prevents a response determination being made 
within 20 working days, the requests shall be processed in a multitrack 
processing system, based on the date of receipt, the amount of work and 
time involved in processing the requests, and whether the request 
qualifies for expedited processing as described in paragraph (d)(3) of 
this section. DoD Components may establish as many processing queues as 
they wish; however, as a minimum, three processing tracks shall be 
established, all based on a first-in, first-out concept, and rank 
ordered by the date of receipt of the request. One track shall be a 
processing queue for simple requests, one track for complex requests, 
and one track shall be a processing queue for expedited processing as 
described in paragraph (d)(3) of this section. Determinations as to 
whether a request is simple or complex shall be made by each DoD 
Component. DoD Components shall provide a requester whose request does 
not qualify for the fastest queue (except for expedited processing as 
described in paragraph (d)(3) of this section), an opportunity to limit 
in writing hard copy, facsimile, or electronically, the scope of the 
request in order to qualify for the fastest queue. This multitrack 
processing system does not obviate components' responsibility to

[[Page 692]]

exercise due diligence in processing requests in the most expeditious 
manner possible.
    (3) Expedited processing. A separate queue shall be established for 
requests meeting the test for expedited processing. Expedited processing 
shall be granted to a requester after the requester requests such and 
demonstrates a compelling need for the information. Notice of the 
determination as to whether to grant expedited processing in response to 
a requester's compelling need shall be provided to the requester within 
10 calendar days after receipt of the request in the DoD Component's 
office that will determine whether to grant expedited processing. Once 
the DoD Component has determined to grant expedited processing, the 
request shall be processed as soon as practicable. Actions by DoD 
Components to initially deny or affirm the initial denial on appeal of a 
request for expedited processing, and failure to respond in a timely 
manner shall be subject to judicial review.
    (i) Compelling need means that the failure to obtain the records on 
an expedited basis could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual.
    (ii) Compelling need also means that the information is urgently 
needed by an individual primarily engaged in disseminating information 
in order to inform the public concerning actual or alleged Federal 
Government activity. An individual primarily engaged in disseminating 
information means a person whose primary activity involves publishing or 
otherwise disseminating information to the public. Representatives of 
the news media (see Sec. 286.28(e)) would normally qualify as 
individuals primarily engaged in disseminating information. Other 
persons must demonstrate that their primary activity involves publishing 
or otherwise disseminating information to the public.
    (A) Urgently needed means that the information has a particular 
value that will be lost if not disseminated quickly. Ordinarily this 
means a breaking news story of general public interest. However, 
information of historical interest only, or information sought for 
litigation or commercial activities would not qualify, nor would a news 
media publication or broadcast deadline unrelated to the news breaking 
nature of the information.
    (B) [Reserved]
    (iii) A demonstration of compelling need by a requester shall be 
made by a statement certified by the requester to be true and correct to 
the best of their knowledge. This statement must accompany the request 
in order to be considered and responded to within the 10 calendar days 
required for decisions on expedited access.
    (iv) Other reasons for expedited processing. Other reasons that 
merit expedited processing by DoD Components are an imminent loss of 
substantial due process rights and humanitarian need. A demonstration of 
imminent loss of substantial due process rights shall be made by a 
statement certified by the requester to be true and correct to the best 
of his or her knowledge. Humanitarian need means that disclosing the 
information will promote the welfare and interest of mankind. A 
demonstration of humanitarian need shall be also made by a statement 
certified by the requester to be true and correct to the best of his or 
her knowledge. Both statements mentioned above must accompany the 
request in order to be considered and responded to within the 10 
calendar days required for decisions on expedited access. Once the 
decision has been made to expedite the request for either of these 
reasons, the request may be processed in the expedited processing queue 
behind those requests qualifying for compelling need.
    (v) These same procedures also apply to requests for expedited 
processing of administrative appeals.
    (e) Use of exemptions. It is DoD policy to make records publicly 
available, unless the record qualifies for exemption under one or more 
of the nine exemptions. It is DoD policy that DoD Components shall make 
discretionary releases whenever possible; however, a discretionary 
release is normally not appropriate for records clearly exempt under 
exemptions 1, 3, 4, 6, 7(C) and 7(F) (see subpart C of this part). 
Exemptions 2, 5, and 7(A)(B)(D) and (E)

[[Page 693]]

(see subpart C of this part) are discretionary in nature, and DoD 
Components are encouraged to exercise discretionary releases whenever 
possible. Exemptions 4, 6 and 7(C) cannot be claimed when the requester 
is the submitter of the information.
    (f) Public domain. Nonexempt records released under the authority of 
this part are considered to be in the public domain. Such records may 
also be made available in Components' reading rooms in paper form, as 
well as electronically, to facilitate public access. Discretionary 
releases to FOIA requesters constitute a waiver of the FOIA exemption 
that may otherwise apply. Disclosure to a properly constituted advisory 
committee, to Congress, or to other Federal Agencies does not waive the 
exemption. (See Sec. 286.22(d).) Exempt records disclosed without 
authorization by the appropriate DoD official do not lose their exempt 
status. Also, while authority may exist to disclose records to 
individuals in their official capacity, the provisions of this Part 
apply if the same individual seeks the records in a private or personal 
capacity.
    (g) Creating a record. (1) A record must exist and be in the 
possession and control of the Department of Defense at the time of the 
search to be considered subject to this part and the FOIA. There is no 
obligation to create, compile, or obtain a record to satisfy a FOIA 
request. A DoD Component, however, may compile a new record when so 
doing would result in a more useful response to the requester, or be 
less burdensome to the agency than providing existing records, and the 
requester does not object. Cost of creating or compiling such a record 
may not be charged to the requester unless the fee for creating the 
record is equal to or less than the fee which would be charged for 
providing the existing record. Fee assessments shall be in accordance 
with subpart F of this part.
    (2) About electronic data, the issue of whether records are actually 
created or merely extracted from an existing database is not always 
readily apparent. Consequently, when responding to FOIA requests for 
electronic data where creation of a record, programming, or particular 
format are questionable, Components should apply a standard of 
reasonableness. In other words, if the capability exists to respond to 
the request, and the effort would be a business as usual approach, then 
the request should be processed. However, the request need not be 
processed where the capability to respond does not exist without a 
significant expenditure of resources, thus not being a normal business 
as usual approach. As used in this sense, a significant expenditure of 
resources in both time and manpower, that would cause a significant 
interference with the operation of the Component's automated information 
system would not be a business as usual approach.
    (h) Description of requested record. (1) Identification of the 
record desired is the responsibility of the requester. The requester 
must provide a description of the desired record, that enables the 
Government to locate the record with a reasonable amount of effort. In 
order to assist DoD Components in conducting more timely searches, 
requesters should endeavor to provide as much identifying information as 
possible. When a DoD Component receives a request that does not 
reasonably describe the requested record, it shall notify the requester 
of the defect in writing. The requester should be asked to provide the 
type of information outlined in paragraph (h)(2) of this section. DoD 
Components are not obligated to act on the request until the requester 
responds to the specificity letter. When practicable, DoD Components 
shall offer assistance to the requester in identifying the records 
sought and in reformulating the request to reduce the burden on the 
agency in complying with the Act.
    (2) The following guidelines are provided to deal with generalized 
requests and are based on the principle of reasonable effort 
(Descriptive information about a record may be divided into two broad 
categories.):
    (i) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or

[[Page 694]]

the date and circumstances surrounding the event the record covers.
    (3) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, non-random search based on the DoD Component's 
filing arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit inference of the 
Category I elements needed to conduct such a search.
    (4) The following guidelines deal with requests for personal 
records: Ordinarily, when personal identifiers are provided only in 
connection with a request for records concerning the requester, only 
records in a Privacy Act System of records that can be retrieved by 
personal identifiers need be searched. However, if a DoD Component has 
reason to believe that records on the requester may exist in a record 
system other than a Privacy Act system, the DoD Component shall search 
that system under the provisions of the FOIA. In either case, DoD 
Components may request a reasonable description of the records desired 
before searching for such records under the provisions of the FOIA and 
the Privacy Act. If the record is required to be released under the 
FOIA, the Privacy Act does not bar its disclosure. See paragraph (m) of 
this section for the relationship between the FOIA and the Privacy Act.
    (5) The previous guidelines notwithstanding, the decision of the DoD 
Component concerning reasonableness of description must be based on 
knowledge of its files. If the description enables DoD Component 
personnel to locate the record with reasonable effort, the description 
is adequate. The fact that a FOIA request is broad or burdensome in its 
magnitude does not, in and of itself, entitle a DoD Component to deny 
the request on the ground that it does not reasonably describe the 
records sought. The key factor is the ability of the DoD Component's 
staff to reasonably ascertain and locate which records are being 
requested.
    (i) Referrals. (1) The DoD FOIA referral policy is based upon the 
concept of the originator of a record making a release determination on 
its information. If a DoD Component receives a request for records 
originated by another DoD Component, it should contact the DoD Component 
to determine if it also received the request, and if not, obtain 
concurrence from the other DoD Component to refer the request. In either 
situation, the requester shall be advised of the action taken, unless 
exempt information would be revealed. While referrals to originators of 
information result in obtaining the best possible decision on release of 
the information, the policy does not relieve DoD Components from the 
responsibility of making a release decision on a record should the 
requester object to referral of the request and the record. Should this 
situation occur, DoD Components should coordinate with the originator of 
the information prior to making a release determination. A request 
received by a DoD Component having no records responsive to a request 
shall be referred routinely to another DoD Component, if the other DoD 
Component has reason to believe it has the requested record. Prior to 
notifying a requester of a referral to another DoD Component, the DoD 
Component receiving the initial request shall consult with the other DoD 
Component to determine if that DoD Component's association with the 
material is exempt. If the association is exempt, the DoD Component 
receiving the initial request will protect the association and any 
exempt information without revealing the identity of the protected DoD 
Component. The protected DoD Component shall be responsible for 
submitting the justifications required in any litigation. Any DoD 
Component receiving a request that has been misaddressed shall refer the 
request to the proper address and advise the requester. DoD Components 
making referrals of requests or records shall include with the referral, 
a point of contact by name, a telephone number, and an e-mail address.
    (2) A DoD Component shall refer for response directly to the 
requester, a FOIA request for a record that it holds to another DoD 
Component or agency outside the DoD, if the record originated in the 
other DoD Component or outside agency. Whenever a record or a

[[Page 695]]

portion of a record is referred to another DoD Component or to a 
Government Agency outside of the DoD for a release determination and 
direct response, the requester shall be informed of the referral, unless 
it has been determined that notification would reveal exempt 
information. Referred records shall only be identified to the extent 
consistent with security requirements.
    (3) A DoD Component may refer a request for a record that it 
originated to another DoD Component or agency when the other DoD 
Component or agency has a valid interest in the record, or the record 
was created for the use of the other DoD Component or agency. In such 
situations, provide the record and a release recommendation on the 
record with the referral action. Ensure you include a point of contact 
with the telephone number. An example of such a situation is a request 
for audit reports prepared by the Defense Contract Audit Agency. These 
advisory reports are prepared for the use of contracting officers and 
their release to the audited contractor shall be at the discretion of 
the contracting officer. A FOIA request shall be referred to the 
appropriate DoD Component and the requester shall be notified of the 
referral, unless exempt information would be revealed. Another example 
is a record originated by a DoD Component or agency that involves 
foreign relations, and could affect a DoD Component or organization in a 
host foreign country. Such a request and any responsive records may be 
referred to the affected DoD Component or organization for consultation 
prior to a final release determination within the Department of Defense. 
See also Sec. 286.22(e) of this part.
    (4) Within the Department of Defense, a DoD Component shall 
ordinarily refer a FOIA request and a copy of the records it holds, but 
that was originated by other DoD Component or that contains substantial 
information obtained from another DoD Component, to that Component for 
direct response, after direct coordination and obtaining concurrence 
from the Component. The requester then shall be notified by such 
referral. DoD Components shall not, in any case, release or deny such 
records without prior consultation with the other DoD Component, except 
as provided in Sec. 286.22(e) of this part.
    (5) DoD Components that receive referred requests shall answer them 
in accordance with the time limits established by the FOIA, this part, 
and their multitrack processing queues, based upon the date of initial 
receipt of the request at the referring component or agency.
    (6) Agencies outside the Department of Defense that are subject to 
the FOIA.
    (i) A DoD Component may refer a FOIA request for any record that 
originated in an agency outside the Department of Defense or that is 
based on information obtained from an outside agency to the agency for 
direct response to the requester after coordination with the outside 
agency, if that agency is subject to FOIA. Otherwise, the DoD Component 
must respond to the request.
    (ii) A DoD Component shall refer to the agency that provided the 
record any FOIA request for investigative, intelligence, or any other 
type of records that are on loan to the Department of Defense for a 
specific purpose, if the records are restricted from further release and 
so marked, However, if for investigative or intelligence purposes, the 
outside agency desires anonymity, a DoD Component may only respond 
directly to the requester after coordination with the outside agency.
    (7) DoD Components that receive requests for records of the National 
Security Council (NSC), the White House, or the White House Military 
Office (WHMO) shall process the requests. DoD records in which the NSC 
or White House has a concurrent reviewing interest, and NSC, White 
House, or WHMO records discovered in DoD Components' files shall be 
forwarded to the Directorate for Freedom of Information and Security 
Review (DFOISR). The DFOISR shall coordinate with the NSC, White House, 
or WHMO and return the records to the originating agency after 
coordination.
    (8) To the extent referrals are consistent with the policies 
expressed by this section, referrals between offices of the same DoD 
Component are authorized.

[[Page 696]]

    (9) On occasion, the Department of Defense receives FOIA requests 
for General Accounting Office (GAO) records containing DoD information. 
Even though the GAO is outside the executive Branch, and not subject to 
the FOIA, all FOIA requests for GAO documents containing DoD information 
received either from the public, or on referral from the GAO, shall be 
processed under the provisions of the FOIA.
    (j) Authentication. Records provided under this part shall be 
authenticated with an appropriate seal, whenever necessary, to fulfill 
an official government or other legal function. This service, however, 
is in addition to that required under the FOIA and is not included in 
the FOIA fee schedule. DoD Components may charge for the service at a 
rate of $5.20 for each authentication.
    (k) Combatant Commands. (1) The Combatant Commands are placed under 
the jurisdiction of the OSD, instead of the administering Military 
Department or the Chairman of the Joint Chiefs of Staff, only for the 
purpose of administering the DoD FOIA Program. This policy represents an 
exception to the policies directed in DoD Directive 5100.3; \3\ it 
authorizes and requires the Combatant Commands to process FOIA requests 
in accordance with DoD Directive 5400.7 and this part. The Combatant 
Commands shall forward directly to the Director, Freedom of Information 
and Security Review all correspondence associated with the appeal of an 
initial denial for records under the provisions of the FOIA. Procedures 
to effect this administrative requirement are outlined in appendix A of 
this part.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (2) Combatant Commands shall maintain an electronic reading room for 
FOIA-processed 5 U.S.C. 552(a)(2)(D) records in accordance with subpart 
B of this part. Records qualifying for this means of public access also 
shall be maintained in hard copy for public access at Combatant 
Commands' respective locations.
    (l) Records management. FOIA records shall be maintained and 
disposed of in accordance with the National Archives and Records 
Administration General Records Schedule, and DoD Component records 
schedules.
    (m) Relationship between the FOIA and the Privacy Act (PA). Not all 
requesters are knowledgeable of the appropriate statutory authority to 
cite when requesting records, nor are all of them aware of appeal 
procedures. In some instances, they may cite neither Act, but will imply 
one or both Acts. For these reasons, the following guidelines are 
provided to ensure that requesters receive the greatest amount of access 
rights under both Acts. See also Sec. 286.24 regarding appeal rights.
    (1) If the record is required to be released under the FOIA, the 
Privacy Act does not bar its disclosure. Unlike the FOIA, the Privacy 
Act applies only to U.S. citizens and aliens admitted for permanent 
residence.
    (2) Requesters who seek records about themselves contained in a 
Privacy Act system of records and who cite or imply only the Privacy 
Act, will have their requests processed under the provisions of both the 
Privacy Act and the FOIA. If the Privacy Act system of records is exempt 
from the provisions of 5 U.S.C. 552a(d)(1) and if the records, or any 
portion thereof, are exempt under the FOIA, the requester shall be so 
advised with the appropriate Privacy Act and FOIA exemption. Appeals 
shall be processed under both Acts.
    (3) Requesters who seek records about themselves that are not 
contained in a Privacy Act system of records and who cite or imply the 
Privacy Act will have their requests processed under the provisions of 
the FOIA, since the Privacy Act does not apply to these records. Appeals 
shall be processed under the FOIA.
    (4) Requesters who seek records about themselves that are contained 
in a Privacy Act system of records and who cite or imply the FOIA or 
both Acts will have their requests processed under the provisions of 
both the Privacy Act and the FOIA. If the Privacy Act system of records 
is exempt from the provisions of 5 U.S.C. 552a(d)(1) and if the records 
or any portion thereof, are exempt under the FOIA, the requester shall 
be so advised with the appropriate Privacy Act and FOIA exemption. 
Appeals shall be processed under both Acts.

[[Page 697]]

    (5) Requesters who seek access to agency records that are not part 
of a Privacy Act system of records, and who cite or imply the Privacy 
Act and FOIA, will have their requests processed under the FOIA since 
the Privacy Act does not apply to these records. Appeals shall be 
processed under the FOIA.
    (6) Requesters who seek access to agency records and who cite or 
imply the FOIA will have their requests an appeals processed under the 
FOIA.
    (7) Requesters shall be advised in the final response letter which 
Act(s) was (were) used, inclusive of appeal rights as outlined in 
paragraphs (m)(1) through (m)(6) of this section.
    (n) Non-responsive information in responsive records. DoD Components 
shall interpret FOIA requests liberally when determining which records 
are responsive to the requests, and may release non-responsive 
information. However, should DoD Components desire to withhold non-
responsive information, the following steps shall be accomplished:
    (1) Consult with the requester, and ask if the requester views the 
information as responsive, and if not, seek the requester's concurrence 
to deletion of non-responsive information without a FOIA exemption. 
Reflect this concurrence in the response letter.
    (2) If the responsive record is unclassified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all non-responsive and responsive information which 
is not exempt. For non-responsive information that is exempt, notify the 
requester that even if the information were determined responsive, it 
would likely be exempt under (state appropriate exemption(s)). Advise 
the requester of the right to request this information under a separate 
FOIA request. The separate request shall be placed in the same location 
within the processing queue as the original request.
    (3) If the responsive record is classified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all unclassified responsive and non-responsive 
information which is not exempt. If the non-responsive information is 
exempt, follow the procedures in paragraph (n)(2) of this section. The 
classified, non-responsive information need not be reviewed for 
declassification at this point. Advise the requester that even if the 
classified information were determined responsive, it would likely be 
exempt under 5 U.S.C. 552(b)(1), and other exemptions if appropriate. 
Advise the requester of the right to request this information under a 
separate FOIA request. The separate request shall be placed in the same 
location within the processing queue as the original request.
    (o) Honoring form or format requests. DoD Components shall provide 
the record in any form or format requested by the requester if the 
record is readily reproducible in that form or format. DoD Components 
shall make reasonable efforts to maintain their records in forms or 
formats that are reproducible. In responding to requests for records, 
DoD Components shall make reasonable efforts to search for records in 
electronic form or format, except when such efforts would significantly 
interfere with the operation of the DoD Components' automated 
information system. Such determinations shall be made on a case by case 
basis. See also paragraph (g)(2) of this section.

[63 FR 65420, Nov. 25, 1998; 63 FR 67724, Dec. 8, 1998]



                      Subpart B_FOIA Reading Rooms



Sec. 286.7  Requirements.

    (a) Reading room. Each DoD Component shall provide an appropriate 
facility or facilities where the public may inspect and copy or have 
copied the records described in paragraph (b) of this section and Sec. 
286.8(a). In addition to the records described in paragraph (b) of this 
section and Sec. 286.8(a), DoD Components may elect to place other 
records in their reading room, and also make them electronically 
available to the public. DoD Components may share reading room 
facilities if the public is not unduly inconvenienced, and also may 
establish decentralized reading rooms. When appropriate, the cost of 
copying may be imposed on the person requesting the material in 
accordance with the provisions of subpart F of this part.

[[Page 698]]

    (b) Record availability. The FOIA requires that records described in 
5 U.S.C. 552(a)(2) (A), (B), (C), and (D) created on or after November 
1, 1996, shall be made available electronically by November 1, 1997, as 
well as in hard copy in the FOIA reading room for inspection and 
copying, unless such records are published and copies are offered for 
sale. Personal privacy information, that if disclosed to a third party 
requester, would result in an invasion of the first party's personal 
privacy, and contractor submitted information, that if disclosed to a 
competing contractor, would result in competitive harm to the submitting 
contractor shall be deleted from all 5 U.S.C. 552(A)(2) records made 
available to the general public. In every case, justification for the 
deletion must be fully explained in writing, and the extent of such 
deletion shall be indicated on the record which is made publicly 
available, unless such indication would harm an interest protected by an 
exemption under which the deletion was made. If technically feasible, 
the extent of the deletion in electronic records or any other form of 
record shall be indicated at the place in the record where the deletion 
was made. However, a DoD Component may publish in the Federal Register a 
description of the basis upon which it will delete identifying details 
of particular types of records to avoid clearly unwarranted invasions of 
privacy, or competitive harm to business submitters. In appropriate 
cases, the DoD Component may refer to this description rather than write 
a separate justification for each deletion. 5 U.S.C. 552(a)(2) (A), (B), 
(C) and (D) records are:
    (1) (a)(2)(A) records. Final opinions, including concurring and 
dissenting opinions, and orders made in the adjudication of cases, as 
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as 
precedents in future adjudications.
    (2) (a)(2)(B) records. Statements of policy and interpretations that 
have been adopted by the agency and are not published in the Federal 
Register.
    (3) (a)(2)(C) records. Administrative staff manuals and 
instructions, or portions therefo, that establish DoD policy or 
interpretations of policy that affect a member of the public. This 
provision does not apply to instructions for employees on tactics and 
techniques to be used in performing their duties, or to instructions 
relating only to the internal management of the DoD Component. Examples 
of manuals and instructions not normally made available are:
    (i) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criterial for defense, prosecution, or settlement of cases.
    (ii) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and intelligence activities.
    (4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) records.
    (i) DoD Components shall decide on a case by case basis whether 
records fall into this category, based on the following factors:
    (A) Previous experience of the DoD Component with simular records.
    (B) Particular circumstances of the records involved, including 
their nature and the type of information contained in them.
    (C) The identify and number of requesters and whether there is 
widespread press, historic, or commercial interest in the records.
    (ii) This provision is intended for situations where public access 
in a timely manner is important, and it is not intended to apply where 
there may be a limited number of requests over a short period of time 
from a few requesters. DoD Components may remove the records from this 
access medium when the appropriate officials determine that access is no 
longer necessary.
    (iii) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, DoD Components 
shall process the FOIA request. However, DoD Components have no 
obligation to process a FOIA request for 5 U.S.C.

[[Page 699]]

552(a)(2) (A), (B), and (C) records because these records are required 
to be made public and not FOIA-processed under paragraph (a)(3) of the 
FOIA.



Sec. 286.8  Indexes.

    (a) ``(a)(2)'' materials. (1) Each DoD Component shall maintain in 
each facility prescribed in Sec. 286.7(a), an index of materials 
described in Sec. 286.7(b) that are issued, adopted, or promulgated, 
after July 4, 1967. No ``(a) (2)'' materials issued, promulgated, or 
adopted after July 4, 1967, that are not indexed and either made 
available or published may be relied upon, used or cited as precedent 
against any individual unless such individual has actual and-timely 
notice of the contents of such materials. Such materials issued, 
promulgated, or adopted before July 4, 1967, need not be indexed, but 
must be made available upon request if not exempted under this part.
    (2) Each DoD Component shall promptly publish quarterly or more 
frequently, and distribute, by sale or otherwise, copies of each index 
of ``(a)(2)'' materials or supplements thereto unless it publishes in 
the Federal Register an order containing a determination that 
publication is unnecessary and impracticable. A copy of each index or 
supplement not published shall be provided to a requester at a cost not 
to exceed the direct cost of duplication as set forth in subpart F of 
this part.
    (3) Each index of ``(a)(2)'' materials or supplement thereto shall 
be arranged topical or by descriptive words rather than by case name or 
numbering system so that members of the public can readily locate 
material. Case name and numbering arrangements, however, may also be 
included for DoD Component convenience.
    (4) A general index of FOIA-processed (a)(2) records referred to in 
Sec. 286.7(b)(4), shall be made available to the public, both in hard 
copy and electronically by December 31, 1999.
    (b) Other materials. (1) Any available index of DoD Component 
material published in the Federal Register, such as material required to 
be published by Section 552(a)(1) of the FOIA, shall be made available 
in DoD Component FOIA reading rooms, and electronically to the public.
    (2) Although not required to be made available in response to FOIA 
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
shall, when feasible, be made available to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. Examples of 
``(a)(1)'' materials are: descriptions of any agency's central and field 
organization, and to the extent they affect the public, rules of 
procedures, descriptions of forms available, instruction as to the scope 
and contents of papers, reports, or examinations, and any amendment, 
revision, or report of the aforementioned.



                          Subpart C_Exemptions



Sec. 286.11  General provisions.

    Records that meet the exemption criteria of the FOIA may be withheld 
from public disclosure and need not be published in the Federal 
Register, made available in a library reading room, or provided in 
response to a FOIA request.



Sec. 286.12  Exemptions.

    The following types of records may be withheld in whole or in part 
from public disclosure under the FOIA, unless otherwise prescribed by 
law: A discretionary release of a record (see also Sec. 286.4(e)) to 
one requester shall prevent the withholding of the same record under a 
FOIA exemption if the record is subsequently requested by someone else. 
However, a FOIA exemption may be invoked to withhold information that is 
similar or related that has been the subject of a discretionary release. 
In applying exemptions, the identity of the requester and the purpose 
for which the record is sought are irrelevant with the exception that an 
exemption may not be invoked where the particular interest to be 
protected is the requester's interest. However, if the subject of the 
record is the requester for the record and the record is contained in a 
Privacy Act system of records, it may only be denied to the

[[Page 700]]

requester if withholding is both authorized by DoD 5400.11-R \4\ and by 
a FOIA exemption.
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    \4\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (a) Number 1 (5 U.S.C. 552(b)(1)). Those properly and currently 
classified in the interest of national defense or foreign policy, as 
specifically authorized under the criteria established by Executive 
Order and implemented by regulations, such as DoD 5200.1-R.\5\ Although 
material is not classified at the time of the FOIA request, a 
classification review may be undertaken to determine whether the 
information should be classified. The procedures in DoD 5200.1-R apply. 
If the information qualifies as exemption 1 information, there is no 
discretion regarding its release. In addition, this exemption shall be 
invoked when the following situations are apparent:
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, Components 
shall neither confirm nor deny the existence or nonexistence of the 
record being requested. A ``refusal to confirm or deny'' response must 
be used consistently, not only when a record exists, but also when a 
record does not exist. Otherwise, the pattern of using a ``no record'' 
response when a record does not exist, and a ``refusal to confirm or 
deny'' when a record does exist will itself disclose national security 
information.
    (2) Compilations of items of information that are individually 
unclassified may be classified if the compiled information reveals 
additional association or relationship that meets the standard for 
classification under an existing executive order for classification and 
DoD 5200.R-1, and is not otherwise revealed in the individual items of 
information.
    (b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the 
internal personnel rules and practices of the Department of Defense or 
any of its Components. This exemption is entirely discretionary. This 
exemption has two profiles, high (b)(2) and low (b)(2). Paragraph (b)(2) 
of this section contains a brief discussion on the low (b)(2) profile; 
however, that discussion is for information purposes only. When only a 
minimum Government interest would be affected (administrative burden), 
there is a great potential for discretionary disclosure of the 
information. Consequently, DoD Components shall not invoke the low 
(b)(2) profile.
    (1) Records qualifying under high (b)(2) are those containing or 
constituting statues, rules, regulations, orders, manuals, directives, 
instructions, and security classification guides, the release of which 
would allow circumvention of these records thereby substantially 
hindering the effective performance of a significant function of the 
Department of Defense. Examples include:
    (i) Those operating rules, guidelines, and manuals for DoD 
investigators, inspectors, auditors, and examiners that must remain 
privileged in order for the DoD Component to fulfill a legal 
requirement.
    (ii) Personnel and other administrative matters, such as examination 
questions and answers used in training courses or in the determination 
of the qualifications of candidates for employment, entrance on duty, 
advancement, or promotion.
    (iii) Computer software, the release of which would allow 
circumvention of a statute or DoD rules, regulations, orders, manuals, 
directives, or instructions. In this situation, the use of the software 
must be closely examined to ensure a circumvention possibility exists.
    (2) Records qualifying under the low (b)(2) profile are those that 
are trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose the records. Examples include rules of personnel's use of 
parking facilities or regulation of lunch hours, statements of policy as 
to sick leave, and administrative data such as file numbers, mail 
routing stamps, initials, data processing notations, brief references to 
previous communications, and other like administrative markings. DoD 
Components shall not invoke the low (b)(2) profile.

[[Page 701]]

    (c) Number 3 (5 U.S.C. 552(b)(3)). Those concerning matters that a 
statute specifically exempts from disclosure by terms that permit no 
discretion on the issue, or in accordance with criteria established by 
that statute for withholding or referring to particular types of matters 
to be withheld. The Directorate for Freedom of Information and Security 
Review maintains a list of (b)(3) statutes used within the Department of 
Defense, and provides updated lists of these statutes to DoD Components 
on a periodic basis. A few examples of such statutes are:
    (1) Patent Secrecy, 35 U.S.C. 181-188. Any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (2) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
    (3) Communication Intelligence, 18 U.S.C. 798.
    (4) Authority to Withhold From Public Disclosure Certain Technical 
Data, 10 U.S.C. 130 and DoD Directive 5230.25.\6\
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (5) Confidentiality of Medical Quality Assurance Records: Qualified 
Immunity for Participants, 10 U.S.C. 1102f.
    (6) Physical Protection of Special Nuclear Material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128.
    (7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(6).
    (8) Protection of Contractor Submitted Proposals, 10 U.S.C. 2305(g).
    (9) Procurement Integrity, 41 U.S.C. 423.
    (d) Number 4 (5 U.S.C. 552(b)(4)). Those containing trade secrets or 
commercial or financial information that a DoD Component receives from a 
person or organization outside the Government with the understanding 
that the information or record will be retained on a privileged or 
confidential basis in accordance with the customary handling of such 
records. Records within the exemption must contain trade secrets, or 
commercial or financial records, the disclosure of which is likely to 
cause substantial harm to the competitive position of the source 
providing the information; impair the Government's ability to obtain 
necessary information in the future; or impair some other legitimate 
Government interest. Commercial or financial information submitted on a 
voluntary basis, absent any exercised authority prescribing criteria for 
submission is protected without any requirement to show competitive harm 
(see paragraph (d)(8) of this section). If the information qualifies as 
exemption 4 information, there is no discretion in its release. Examples 
include:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals set forth in or 
incorporated by reference in a contract entered into between the DoD 
Component and the offeror that submitted the proposal, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. See also Sec. 
286.23(h)(2) of this part. Additionally, when the provisions of 10 
U.S.C. 2305(g), and 41 U.S.C. 423 are met, certain proprietary and 
source selection information may be withheld under exemption 3.
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, if offered and received in confidence from a contractor or 
potential contractor.
    (3) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (4) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees within 
the Department of Defense.
    (5) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.

[[Page 702]]

    (6) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, and technical or 
scientific data developed in part with Federal funds and in part at 
private expense, wherein the contractor or subcontractor has retained 
legitimate proprietary interests in such data in accordance with 10 
U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement 
(DFARS), Chapter 2 of 48 CFR, Subpart 227.71-227.72. Technical data 
developed exclusively with Federal funds may be withheld under Exemption 
Number 3 if it meets the criteria of 10 U.S.C. 130 and DoD Directive 
5230.25 (see paragraph (c)(4) of this section).
    (7) Computer software which is copyrighted under the Copyright Act 
of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse 
impact on the potential market value of a copyrighted work.
    (8) Proprietary information submitted strictly on a voluntary basis, 
absent any exercised authority prescribing criteria for submission. 
Examples of exercised authorities prescribing criteria for submission 
are statutes, Executive Orders, regulations, invitations for bids, 
requests for proposals, and contracts. Submission of information under 
these authorities is not voluntary. (See also Sec. 286.23(h)(3).)
    (e) Number 5 (5 U.S.C. 552(b)(5)). Those containing information 
considered privileged in litigation, primarily under the deliberative 
process privilege. Except as provided in paragraphs (e)(2) through 
(e)(5) of this section, internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters, that are reflected in 
deliberative records pertaining to the decision-making process of an 
agency, whether within or among agencies (as defined in 5 U.S.C. 
552(e)), or within or among DoD Components. In order to meet the test of 
this exemption, the record must be both deliberative in nature, as well 
as part of a decision-making process. Merely being an internal record is 
insufficient basis for withholding under this exemption. Also 
potentially exempted are records pertaining to the attorney-client 
privilege and the attorney work-product privilege. This exemption is 
entirely discretionary.
    (1) Examples of the deliberative process include:
    (i) The non factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (ii) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other similar groups that are formed for the purpose of 
obtaining advice and recommendations.
    (iii) Those non factual portions of evaluations by DoD Component 
personnel of contractors and their products.
    (iv) Information of a speculative, tentative, or evaluative nature 
or such matters as proposed plans to procure, lease or otherwise acquire 
and dispose of materials, real estate, facilities or functions, when 
such information would provide undue or unfair competitive advantage to 
private personal interests or would impede legitimate government 
functions.
    (v) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest.
    (vi) Those portions of official reports of inspection, reports of 
the Inspector General, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of one or more DoD Components, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (vii) Planning, programming, and budgetary information that is 
involved in the defense planning and resource allocation process.
    (2) If any such intra- or inter-agency record or reasonably 
segregable portion of such record hypothetically would be made available 
routinely through the discovery process in the course of litigation with 
the Agency, then it should not be withheld under the FOIA. If,

[[Page 703]]

however, the information hypothetically would not be released at all, or 
would only be released in a particular case during civil discovery where 
a party's particularized showing of need might override a privilege, 
then the record may be withheld. Discovery is the formal process by 
which litigants obtain information from each other for use in the 
litigation. Consult with legal counsel to determine whether exemption 5 
material would be routinely made available through the discovery 
process.
    (3) Intra- or inter-agency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
made available through discovery, and shall be made available to a 
requester, unless the factual material is otherwise exempt from release, 
inextricably intertwined with the exempt information, so fragmented as 
to be uninformative, or so redundant of information already available to 
the requester as to provide no new substantive information.
    (4) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making process.
    (5) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporately by reference in the record containing 
the decision.
    (f) Number 6 (5 U.S.C. 552(b)(6)). Information in personnel and 
medical files, as well as similar personal information in other files, 
that, if disclosed to a requester, other than the person about whom the 
information is about, would result in a clearly unwarranted invasion of 
personal privacy. Release of information about an individual contained 
in a Privacy Act System of records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties. If the information qualifies 
as exemption 6 information, there is no discretion in its release.
    (1) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (i) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information.
    (ii) Files containing reports, records, and other material 
pertaining to personnel matters in which administrative action, 
including disciplinary action, may be taken.
    (2) Home addresses, including private e-mail addresses, are normally 
not releasable without the consent of the individuals concerned. This 
includes lists of home addresses and military quarters' addresses 
without the occupant's name. Additionally, the names and duty addresses 
(postal and/or e-mail) of DoD military and civilian personnel who are 
assigned to units that are sensitive, routinely deployable, or stationed 
in foreign territories can constitute a clearly unwarranted invasion of 
personal privacy.
    (i) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at some place 
and time. If personal information is not freely available from sources 
other than the Federal Government, a privacy interest exists in its 
nondisclosure. The fact that the Federal Government expended funds to 
prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA to obtain these records indicates the 
information is not freely available.
    (ii) Names and duty addresses (postal and/or e-mail) published in 
telephone directories, organizational charts, rosters and similar 
materials for personnel assigned to units that are sensitive, routinely 
deployable, or stationed in foreign territories are withholdable under 
this exemption.
    (3) This exemption shall not be used in an attempt to protect the 
privacy of

[[Page 704]]

a deceased person, but it may be used to protect the privacy of the 
deceased person's family if disclosure would rekindle grief, anguish, 
pain, embarrassment, or even disruption of peace of mind of surviving 
family members. In such situations, balance the surviving family 
members' privacy against the public's right to know to determine if 
disclosure is in the public interest. Additionally, the deceased's 
social security number should be withheld since it is used by the next 
of kin to receive benefits. Disclosures may be made to the immediate 
next of kin as defined in DoD Directive 5154.24.\7\
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    \7\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (4) A clearly unwarranted invasion of the privacy of third parties 
identified in a personnel, medical or similar record constitutes a basis 
for deleting those reasonably segregable portions of that record. When 
withholding third party personal information from the subject of the 
record and the record is contained in a Privacy Act system of records, 
consult with legal counsel.
    (5) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, DoD 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
6 must be cited in the response. Additionally, in order to insure 
personal privacy is not violated during referrals, DoD Components shall 
coordinate with other DoD Components or Federal Agencies before 
referring a record that is exempt under the Glomar concept.
    (i) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (ii) Refusal to confirm or deny should not be used when:
    (A) The person whose personal privacy is in jeopardy has provided 
the requester a waiver of his or her privacy rights.
    (B) The person initiated or directly participated in an 
investigation that lead to the creation of any agency record seeks 
access to that record.
    (C) The person whose personal privacy is in jeopardy is deceased, 
the Agency is aware of that fact, and disclosure would not invade the 
privacy of the deceased's family. See paragraph (f)(3) of this section.
    (g) Number 7 (5 U.S.C. 552(b)(7)). Records or information complied 
for law enforcement purposes; i.e., civil, criminal, or military law, 
including the implementation of Executive orders or regulations issued 
pursuant to law. This exemption may be invoked to prevent disclosure of 
documents not originally created for, but later gathered for law 
enforcement purposes. With the exception of parts (C) and (F) (see 
paragraph (g)(1)(iii) of this section) of this exemption, this exemption 
is discretionary. If information qualifies as exemption (7)(C) or (7)(F) 
(see paragraph (g)(1)(iii) of this section) information, there is no 
discretion in its release.
    (1) This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings (5 U.S.C. 552(b)(7)(A)).
    (ii) Would deprive a person of the right to a fair trial or to an 
impartial adjudication (5 U.S.C. 552(b)(7)(B)).
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record (5 U.S.C. 
552(b)(7)(C)).
    (A) this exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This a Glomar response, and exemption 
(7)(C) must be

[[Page 705]]

cited in the response. Additionally, in order to insure personal privacy 
is not violated during referrals, DoD Components shall coordinate with 
other DoD Components or Federal Agencies before referring a record that 
is exempt under the Glomar concept.
    (B) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (C) Refusal to confirm or deny should not be used when:
    (1) The person whose personal privacy is in jeopardy has provided 
the requester with a waiver of his or her privacy rights.
    (2) The person whose personal privacy is in jeopardy is deceased, 
and the Agency is aware of that fact.
    (D) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Department of 
Defense; a State, local, or foreign agency or authority; or any private 
institution that furnishes the information on a confidential basis; and 
could disclose information furnished from a confidential source and 
obtained by a criminal law enforcement authority in a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation (5 U.S.C. 552(b)(7)(D)).
    (E) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law (5 U.S.C. 
552(b)(7)(E)).
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual (5 U.S.C. 552(b)(7)(F)).
    (2) Some examples of exemption 7 are:
    (i) Statements of witnesses and other material developed during the 
course of the investigation and all materials prepared in connection 
with related Government litigation or adjudicative proceedings.
    (ii) The identify of firms or individuals being investigated for 
alleged irregularities involving contracting with the Department of 
Defense when no indictment has been obtained nor any civil action filed 
against them by the United States.
    (iii) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by a criminal law enforcement 
agency or office within a DoD Component, or a lawful national security 
intelligence investigation conducted by an authorized agency or office 
with a DoD Component. National security intelligence investigations 
include background security investigations and those investigations 
conducted for the purpose of obtaining affirmative or 
counterintelligence information.
    (3) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500)) is 
not diminished.
    (4) Exclusions. Excluded from exemption 7 are the following two 
situations applicable to the Department of Defense. (Components 
considering invoking an exclusion should first consult with the 
Department of Justice, Office of Information and Privacy.):
    (i) Whenever a request is made that involves access to records or 
information compiled for law enforcement purposes, and the investigation 
or proceeding involves a possible violation of criminal law where there 
is reason to believe that the subject of the investigation or proceeding 
is unaware of its pendency, and the disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, Components may, during only such times as that 
circumstances continues, treat the records of information as not subject 
to the FOIA. In such situation, the response to the requester will state 
that no records were found.
    (ii) Whenever informant records maintained by a criminal law 
enforcement organization within a DoD Component under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the Component may treat the 
records as not subject to

[[Page 706]]

the FOIA, unless the informant's status as an informant has been 
officially confirmed. If it is determined that the records are not 
subject to 5 U.S.C. 552(b)(7), the response to the request will state 
that no records were found.
    (h) Number 8 (U.S.C. 552 (b)(8)). Those contained in or related to 
examination, operation or condition reports prepared by, on behalf of, 
or for the use of any agency responsible for the regulation or 
supervision of financial institutions.
    (i) Number 9 (5 U.S.C. 552(b)(9)). Those containing geological and 
geophysical information and data (including maps) concerning wells.



                     Subpart D_For Official Use Only



Sec. 286.15  General provisions.

    (a) General. Information that has not been given a security 
classification pursuant to the criteria of an Executive Order, but which 
may be withheld from the public because disclosure would cause a 
foreseeable harm to an interest protected by one or more FOIA exemptions 
2 through 9 (see subpart C of this part) shall be considered as being 
for official use only (FOUO). No other material shall be considered 
FOUO, and FOUO is not authorized as an anemic form of classification to 
protect national security interests. Additional information on FOUO and 
other controlled, unclassified information may be found in DoD 5200. 1-R 
or by contacting the Directorate for Security, Office of the Assistant 
Secretary of Defense (Command, Control, Communications, and 
Intelligence).
    (b) Prior FOUO application. The prior application of FOUO markings 
is not a conclusive basis for withholding a record that is requested 
under the FOIA. When such a record is requested, the information in it 
shall be evaluated to determine whether disclosure would result in a 
foreseeable harm to an interest protected by one or more FOIA exemptions 
2 through 9. Even if any exemptions apply, the record shall be released 
as a discretionary matter when it is determined that there is no 
foreseeable harm to an interest protected by the exemptions.
    (c) Historical papers. Records such as notes, working papers, and 
drafts retained as historical evidence of DoD Component actions enjoy no 
special apart from the exemptions under the FOIA.
    (d) Time to mark records. The marking of records at the time of 
their creation provides notice of FOUO content and facilitates review 
when a record is requested under the FOIA. Records requested under the 
FOIA that do not bear such markings shall not be assumed to be 
releasable without examination for the presence of information that 
requires continued protection and qualifies as exempt from public 
release.
    (e) Distribution statement. Information in a technical document that 
requires a distribution statement pursuant to DoD Directive 5230.24 \8\ 
shall bear that statement and may be marked FOUO, as appropriate.
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    \8\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------



Sec. 286.16  Markings.

    (a) Location of markings. (1) An unclassified document containing 
FOUO information shall be marked ``For Official Use Only'' at the bottom 
on the outside of the front cover (if any), on each page containing FOUO 
information, and on the outside of the back cover (if any). Each 
paragraph containing FOUO information shall be marked as such.
    (2) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information appearing 
on the page. Individual paragraphs shall be marked at the appropriate 
classification level, as well as unclassified or FOUO, as appropriate.
    (3) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the top and bottom of the page, as well as each 
paragraph that contains FOUO information.
    (4) Other records, such as photographs, films, tapes, or slides, 
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that 
ensures that a recipient or viewer is aware of the status of the 
information therein.

[[Page 707]]

    (5) FOUO material transmitted outside the Department of Defense 
requires application of an expanded marking to explain the significance 
of the FOUO marking. This may be accomplished by typing or stamping the 
following statement on the record prior to transfer:

This document contains information
EXEMPT FROM MANDATORY DISCLOSURE
under the FOIA. Exemption(s) ------ applies/apply.

    (b) [Reserved]



Sec. 286.17  Dissemination and transmission.

    (a) Release and transmission procedures. Until FOUO status is 
terminated, the release and transmission instructions that follow apply:
    (1) FOUO information may be disseminated within DoD Components and 
between officials of DoD Components and DoD contractors, consultants, 
and grantees to conduct official business for the Department of Defense. 
Recipients shall be made aware of the status of such information, and 
transmission shall be by means that preclude unauthorized public 
disclosure. Transmittal documents shall call attention to the presence 
of FOUO attachments.
    (2) DoD holders of FOUO information are authorized to convey such 
information to officials in other Departments and Agencies of the 
Executive and Judicial Branches to fulfill a government function, except 
to the extent prohibited by the Privacy Act. Records thus transmitted 
shall be marked ``For Official Use Only,'' and the recipient shall be 
advised that the information may qualify for exemption from public 
disclosure, pursuant to the FOIA, and that special handling instructions 
do or do not apply.
    (3) Release of FOUO information to Members of Congress is governed 
by DoD Directive 5400.4. \9\ Release to the GAO is governed by DoD 
Directive 7650.1. \10\ Records released to the Congress or GAO should be 
reviewed to determine whether the information warrants FOUO status. If 
not, prior FOUO markings shall be removed or effaced. If withholding 
criteria are met, the records shall be marked FOUO and the recipient 
provided an explanation for such exemption and marking. Alternatively, 
the recipient may be requested, without marking the record, to protect 
against its public disclosure for reasons that are explained.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 286.1(a).
    \10\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (b) Transporting FOUO information. Records containing FOUO 
information shall be transported in a manner that prevents disclosure of 
the contents. When not commingled with classified information, FOUO 
information may be sent via first-class mail or parcel post. Bulky 
shipments, such as distributions of FOUO Directives or testing 
materials, that otherwise qualify under postal regulations, may be sent 
by fourth-class mail.
    (c) Electronically and facsimile transmitted messages. Each part of 
electronically and facsimile transmitted messages containing FOUO 
information shall be marked appropriately. Unclassified messages 
containing FOUO information shall contain the abbreviation ``FOUO'' 
before the beginning of the text. Such messages and facsimiles shall be 
transmitted in accordance with communications security procedures 
whenever practicable.



Sec. 286.18  Safeguarding FOUO information.

    (a) During duty hours. During normal working hours, records 
determined to be FOUO shall be placed in an out-of-sight location if the 
work area is accessible to nongovernment personnel.
    (b) During nonduty hours. At the close of business, FOUO records 
shall be stored so as to prevent unauthorized access. Filing such 
material with other unclassified records in unlocked files or desks, 
etc., is adequate when normal U.S. Government or Government-contractor 
internal building security is provided during nonduty hours. When such 
internal security control is not exercised, locked buildings or rooms 
normally provide adequate after-hours protection. If such protection is 
not considered adequate, FOUO material shall be stored in locked 
receptacles such as file cabinets, desks, or bookcases. FOUO records 
that are subject to the provisions of the National Security

[[Page 708]]

Act of 1959 shall meet the safeguards outlined for that group of 
records.



Sec. 286.19  Termination, disposal and unauthorized disclosure.

    (a) Termination. The originator or other competent authority; e.g., 
initial denial and appellate authorities, shall terminate ``For Official 
Use Only'' markings or status when circumstances indicate that the 
information no longer requires protection from public disclosure. When 
FOUO status is terminated, all known holders shall be notified, to the 
extent practical. Upon notification, holders shall efface or remove the 
``For Official Use Only'' markings, but records in file or storage need 
not be retrieved solely for that purpose.
    (b) Disposal. (1) Nonrecord copies of FOUO materials may be 
destroyed by tearing each copy into pieces to prevent reconstructing, 
and placing them in regular trash containers. When local circumstances 
or experience indicates that this destruction method is not sufficiently 
protective of FOUO information, local authorities may direct other 
methods but must give due consideration to the additional expense 
balanced against the degree of sensitivity of the type of FOUO 
information contained in the records.
    (2) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 3301-
3314, as implemented by DoD Component instructions concerning records 
disposal.
    (c) Unauthorized disclosure. The unauthorized disclosure of FOUO 
records does not constitute an unauthorized disclosure of DoD 
information classified for security purposes. Appropriate administrative 
action shall be taken, however, to fix responsibility for unauthorized 
disclosure whenever feasible, and appropriate disciplinary action shall 
be taken against those responsible. Unauthorized disclosure of FOUO 
information that is protected by the Privacy Act may also result in 
civil and criminal sanctions against responsible persons. The DoD 
Component that originated the FOUO information shall be informed of its 
unauthorized disclosure.



               Subpart E_Release and Processing Procedures



Sec. 286.22  General provisions.

    (a) Public information. (1) Since the policy of the Department of 
Defense is to make the maximum amount of information available to the 
public consistent with its other responsibilities, written requests for 
a DoD record made under the provisions of 5 U.S.C. 552(a)(3) of the FOIA 
may be denied only when:
    (i) Disclosure would result in a foreseeable harm to an interest 
protected by a FOIA exemption, and the record is subject to one or more 
of the exemptions of FOIA.
    (ii) The record has not been described well enough to enable the DoD 
Component to locate it with a reasonable amount of effort by an employee 
familiar with the files.
    (iii) The requester has failed to comply with the procedural 
requirements, including the written agreement to pay or payment of any 
required fee imposed by the instructions of the DoD Component concerned. 
When personally identifiable information in a record is requested by the 
subject of the record or the subject's attorney, notarization of the 
request, or a statement certifying under the penalty of perjury that 
their identity is true and correct may be required. Additionally, 
written consent of the subject of the record is required for disclosure 
from a Privacy Act System of records, even to the subject's attorney.
    (2) Individuals seeking DoD information should address their FOIA 
requests to one of the addresses listed in appendix B of this part.
    (b) Requests from private parties. The provisions of the FOIA are 
reserved for persons with private interest as opposed to U.S. Federal 
Agencies seeking official information. Requests from private persons 
will be made in writing, and should clearly show all other addressees 
within the Federal Government to which the request was also sent. This 
procedure will reduce processing time requirements, and ensure better 
inter- and intra-agency coordination. However, if the requester does not 
show all other addressees to which

[[Page 709]]

the request was also sent, DoD Components shall still process the 
request. DoD Components should encourage requesters to send requests by 
mail, facsimile, or by electronic means. Disclosure of records to 
individuals under the FOIA is considered public release of information, 
except as provided for in Sec. 286.4(f) and Sec. 286.12.
    (c) Requests from government officials. Requests from officials of 
State or local Governments for DoD Component records shall be considered 
the same as any other requester. Requests from members of Congress not 
seeking records on behalf of a Congressional Committee, Subcommittee, 
either House sitting as a whole, or made on behalf of their constituents 
shall be considered the same as any other requester (see also Sec. 
286.4(f) and paragraph (d) of this section). Requests from officials of 
foreign governments shall be considered the same as any other requester. 
Requests from officials of foreign governments that do not invoke the 
FOIA shall be referred to appropriate foreign disclosure channels and 
the requester so notified.
    (d) Privileged release outside of the FOIA to U.S. Government 
officials. (1) Records exempt from release to the public under the FOIA 
may be disclosed in accordance with DoD Component regulations to 
agencies of the Federal Government, whether legislative, executive, or 
administrative, as follows:
    (i) In response to a request of a Committee or Subcommittee of 
Congress, or to either House sitting as a whole in accordance with DoD 
Directive 5400.4.
    (ii) To other Federal Agencies, both executive and administrative, 
as determined by the head of a DoD Component or designee.
    (iii) In response to an order of a Federal court, DoD Components 
shall release information along with a description of the restrictions 
on its release to the public.
    (2) DoD Components shall inform officials receiving records under 
the provisions of this paragraph that those records are exempt from 
public release under the FOIA. DoD Components also shall advise 
officials of any special handling instructions. Classified information 
is subject to the provisions of DoD 5200.1-R, and information contained 
in Privacy Act systems of records is subject to DoD 5400.11-R.
    (e) Consultation with affected DoD component. (1) When a DoD 
Component receives a FOIA request for a record in which an affected DoD 
organization (including a Combatant Command) has a clear and substantial 
interest in the subject matter, consultation with that affected DoD 
organization is required. As an example, where a DoD Component receives 
a request for records related to DoD operations in a foreign country, 
the cognizant Combatant Command for the area involved in the request 
shall be consulted before a release is made. Consultations may be 
telephonic, electronic, or in hard copy.
    (2) The affected DoD Component shall review the circumstances of the 
request for host-nation relations, and provide, where appropriate, FOIA 
processing assistance to the responding DoD Component regarding release 
of information. Responding DoD Components shall provide copies of 
responsive records to the affected DoD Component when requested by the 
affected DoD Component. The affected DoD Component shall receive a 
courtesy copy of all releases in such circumstances.
    (3) Nothing in paragraphs (e)(1) and (e)(2) of this section shall 
impede the processing of the FOIA request initially received by a DoD 
Component.



Sec. 286.23  Initial determinations.

    (a) Initial denial authority. (1) Components shall limit the number 
of IDAs appointed. In designating its IDAs, a DoD Component shall 
balance the goals of centralization of authority to promote uniform 
decisions and decentralization to facilitate responding the each request 
within the time limitations of the FOIA.
    (2) The initial determination whether to make a record available 
upon request may be made by any suitable official designated by the DoD 
Component in published regulations. The presence of the marking ``For 
Official Use Only'' does not relieve the designated official of the 
responsibility to review the requested record for the purpose of 
determining whether an exemption under the FOIA is applicable.

[[Page 710]]

    (3) The officials designated by DoD Components to make initial 
determinations should consult with public affairs officers (PAOs) to 
become familiar with subject matter that is considered to be newsworthy, 
and advise PAOs of all requests from news media representatives. In 
addition, the officials should inform PAOs in advance when they intend 
to withhold or partially withhold a record, if it appears that the 
withholding action may be challenged in the media.
    (b) Reasons for not releasing a record. The following are reasons 
for not complying with a request for a record under 5 U.S.C. 552(a)(3):
    (1) No records. A reasonable search of files failed to identify 
responsive records.
    (2) Referrals. The request is transferred to another DoD Component, 
or to another Federal Agency.
    (3) Request withdrawn. The request is withdrawn by the requester.
    (4) Fee-related reason. The requester is unwilling to pay fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with the 
fee estimate.
    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the DoD Component to 
locate it by conducting a reasonable search.
    (6) Not a proper FOIA request for some other reason. The requester 
has failed unreasonably to comply with procedural requirements, other 
than fee-related, imposed by this part or DoD Component supplementing 
regulations.
    (7) Not an agency record. The information requested is not a record 
within the meaning of the FOIA and this part.
    (8) Duplicate request. The request is a duplicate request (e.g., a 
requester asks for the same information more than once). This includes 
identical requests received via different means (e.g., electronic mail, 
facsimile, mail, courier) at the same or different times.
    (9) Other (specify). Any other reason a requester does not comply 
with published rules other than those outlined paragraphs (b)(1) through 
(b)(8) of this section.
    (10) Partial or total denial. The record is denied in whole or in 
part in accordance with procedures set forth in the FOIA.
    (c) Denial tests. To deny a requested record that is in the 
possession and control of a DoD Component, it must be determined that 
disclosure of the record would result in a foreseeable harm to an 
interest protected by a FOIA exemption, and the record is exempt under 
one or more of the exemptions of the FOIA. An outline of the FOIA's 
exemptions is contained in subpart C of this part.
    (d) Reasonably segregable portions. Although portions of some 
records may be denied, the remaining reasonably segregable portions must 
be released to the requester when it reasonably can be assumed that a 
skillful and knowledgeable person could not reconstruct the excised 
information. Unless indicating the extent of the deletion would harm an 
interest protected by an exemption, the amount of deleted information 
shall be indicated on the released portion of paper records by use of 
brackets or darkened areas indicating removal of information. In no case 
shall the deleted areas be left ``white'' without the use of brackets to 
show the bounds of deleted information. In the case of electronic 
deletion, or deletion in audiovisual or microfiche records, if 
technically feasible, the amount of redacted information shall be 
indicated at the place in the record such deletion was made, unless 
including the indication would harm an interest protected by the 
exemption under which the deletion is made. This may be done by use of 
brackets, shaded areas, or some other identifiable technique that will 
clearly show the limits of the deleted information. When a record is 
denied in whole, the responsive advising the requester of that 
determination will specifically state that it is not reasonable to 
segregate portions of the record for release.
    (e) Response to requester. (1) Whenever possible, initial 
determinations to release or deny a record normally shall be made and 
the decision reported to the requester within 20 working days after 
receipt of the request by the official designated to respond. When a DoD 
Component has a significant number of pending requests which prevent a 
response determination within the 20

[[Page 711]]

working day period, the requester shall be so notified in an interim 
response, and advised whether their request qualifies for the fast track 
or slow track within the DoD Components' multitrack processing system. 
Requesters who do not meet the criteria for fast track processing shall 
be given the opportunity to limit the scope of their request in order to 
qualify for fast track processing. See also Sec. 286.4(d)(2), for 
greater detail on multitrack processing and compelling need meriting 
expedited processing.
    (2) When a decision is made to release a record, a copy should be 
made available promptly to the requester once he has complied with 
preliminary procedural requirements.
    (3) When a request for a record is denied in whole or in part, the 
official designated to respond shall inform the requester in writing of 
the name and title or position of the official who made the 
determination, and shall explain to the requester the basis for the 
determination in sufficient detail to permit the requester to make a 
decision concerning appeal. The requester specifically shall be informed 
of the exemptions on which the denial is based, inclusive of a brief 
statement describing what the exemption(s) cover. When the initial 
denial is based in whole or in part on a security classification, the 
explanation should include a summary of the applicable Executive Order 
criteria for classification, as well as an explanation, to the extent 
reasonably feasible, of how those criteria apply to the particular 
record in question. The requester shall also be advised of the 
opportunity and procedures for appealing an unfavorable determination to 
a higher final authority within the DoD Component.
    (4) The final response to the requester should contain information 
concerning the fee status of the request, consistent with the provisions 
of subpart F of this part. When a requester is assessed fees for 
processing a request, the requester's fee category shall be specified in 
the response letter. Components also shall provide the requester with a 
complete cost breakdown (e.g., 15 pages of office reproduction at $0.15 
per page; 5 minutes of computer search time at $43.50 per minute, 2 
hours of professional level search at $25 per hour, etc.) in the 
response letter.
    (5) The explanation of the substantive basis for a denial shall 
include specific citation of the statutory exemption applied under 
provisions of this part; e.g., 5 U.S.C. 552(b)(1). Merely referring to a 
classification; to a ``For Official Use Only'' marking on the requested 
record; or to this part or a DoD Component's regulation does not 
constitute a proper citation or explanation of the basis for invoking an 
exemption.
    (6) When the time for response becomes an issue, the official 
responsible for replying shall acknowledge to the requester the date of 
the receipt of the request.
    (7) When denying a request for records, in whole or in a part, a DoD 
Component shall make a reasonable effort to estimate the volume of the 
records denied and provide this estimate to the requester, unless 
providing such an estimate would harm an interest protected by an 
exemption of the FOIA. This estimate should be in number of pages or in 
some other reasonable form of estimation, unless the volume is otherwise 
indicated through deletions on records disclosed in part.
    (8) When denying a request for records in accordance with a statute 
qualifying as a FOIA exemption 3 statute, DoD Components shall, in 
addition to sitting the particular statute relied upon to deny the 
information, also state whether a court has upheld the decision to 
withhold the information under the particular statute, and a concise 
description of the scope of the information being withheld.
    (f) Extension of time. (1) In unusual circumstances, when additional 
time is needed to respond to the initial request, the DoD Component 
shall acknowledge the request in writing the 20 day period, describe the 
circumstances requiring the delay, and indicate the anticipated date for 
a substantive response that may not exceed 10 additional working days, 
except as follows:
    (2) With respect to a request for which a written notice has 
extended the time limits by 10 additional working days, and the 
Component determines that it cannot make a response determination within 
that additional

[[Page 712]]

10 working day period, the requester shall be notified and provided an 
opportunity to limit the scope of the request so that it may be 
processed within the extended time limit, or an opportunity to arrange 
an alternative time frame for processing the request or a modified 
request. Refusal by the requester to reasonably modify the request or 
arrange for an alternative time frame shall be considered a factor in 
determining whether exceptional circumstances exist with respect to DoD 
Components' request backlogs. Exceptional circumstances do not include a 
delay that results from predictable component backlogs, unless the DoD 
Component demonstrates reasonable progress in reducing its backlog.
    (3) Unusual circumstances that may justify delay are:
    (i) The need to search for and collect the requested records from 
other facilities that are separate from the office determined 
responsible for a release or denial decision on the requested 
information.
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are requested 
in a single request.
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with other agencies having a substantial interest in 
the determination of the request, or among two or more DoD Components 
having a substantial subject-matter interest in the request.
    (4) DoD Components may aggregate certain requests by the same 
requester, or by a group of requesters acting in concert, if the DoD 
Component reasonably believes that such requests actually constitute a 
single request, which would otherwise satisfy the unusual circumstances 
set forth in paragraph (f)(3) of this section, and the requests involve 
clearly related matters. Multiple requests involving unrelated matters 
shall not be aggregated. If the requests are aggregated under these 
conditions, the requester or requesters shall be so notified.
    (5) In cases where the statutory time limits cannot be met and no 
informal extension of time has been agreed to, the inability to process 
any part of the request within the specified time should be explained to 
the requester with a request that he agree to await a substantive 
response by an anticipated date. If should be made clear that any such 
agreement does not prejudice the right of the requester to appeal the 
initial decision after it is made. DoD Components are reminded that the 
requester still retains the right to treat this delay as a de facto 
denial with full administrative remedies.
    (6) As an alternative to the taking of formal extensions of time as 
described in Sec. 286.23(f), the negotiation by the cognizant FOIA 
coordinating office of informal extensions in time with requesters is 
encouraged where appropriate.
    (g) Misdirected requests. Misdirected requests shall be forwarded 
promptly to the DoD Component or other Federal Agency with the 
responsibility for the records requested. The period allowed for 
responding to the request misdirected by the requester shall not begin 
until the request is received by the DoD Component that manages the 
records requested.
    (h) Records of non-U.S. government source. (1) When a request is 
received for a record that falls under exemption 4 (see Sec. 
286.12(d)), that was obtained from a non-U.S. Government source, or for 
a record containing information clearly identified as having been 
provided by a non-U.S. Government source, the source of the record or 
information (also known as ``the submitter'' for matters pertaining to 
proprietary data under 5 U.S.C. 552, Exemption (b)(4)) (Sec. 286.12(d), 
this part and E.O. 12600 (3 CFR, 1987 Comp., p. 235)) shall be notified 
promptly of that request and afforded reasonable time (e.g., 30 calendar 
days) to present any objections concerning the release, unless it is 
clear that there can be no valid basis for objection. This practice is 
required for those FOIA requests for data not deemed clearly exempt from 
disclosure under exemption (b)(4) of 5 U.S.C. 552. If, for example, the 
record or information was provided with actual or presumptive knowledge 
of the non-U.S. Government source and established that it would be made 
available to the public upon request, there is no obligation to notify 
the source. Any

[[Page 713]]

objections shall be evaluated. The final decision to disclose 
information claimed to be exempt under exemption (b)(4) shall be made by 
an official equivalent in rank to the official who would make the 
decision to withhold that information under the FOIA. When a substantial 
issue has been raised, the DoD Component may seek additional information 
from the source of the information and afford the source and requester 
reasonable opportunities to present their arguments on the legal and 
substantive issues involved prior to making an agency determination. 
When the source advises it will seek a restraining order or take court 
action to prevent release of the record or information, the requester 
shall be notified, and action on the request normally shall not be taken 
until after the outcome of that court action is known. When the 
requester brings court action to compel disclosure, the submitter shall 
be promptly notified of this action.
    (2) If the submitted information is a proposal in response to a 
solicitation for a competitive proposal, and the proposal is in the 
possession and control of DoD, and meets the requirements of 10 U.S.C. 
2305(g), the proposal shall not be disclosed, and no submitter 
notification and subsequent analysis is required. The proposal shall be 
withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and 
exemption (b)(3) of 5 U.S.C. 552. This statute does not apply to bids, 
unsolicited proposals, or any proposal that is set forth or incorporated 
by reference in a contract between a DoD Component and the offeror that 
submitted the proposal. In such situations, normal submitter notice 
shall be conducted in accordance with paragraph (h)(1) of this section, 
except for sealed bids that are opened and read to the public. The term 
proposal means information contained in or originating from any 
proposal, including a technical, management, or cost proposal submitted 
by an offeror in response to solicitation for a competitive proposal, 
but does not include an offeror's name or total price or unit prices 
when set forth in a record other than the proposal itself. Submitter 
notice, and analysis as appropriate, are required for exemption (b)(4) 
matters that are not specifically incorporated in 10 U.S.C. 2305(g).
    (3) If the record or information was submitted on a strictly 
voluntary basis, absent any exercised authority that prescribes criteria 
for submission, and after consultation with the submitter, it is 
absolutely clear that the record or information would customarily not be 
released to the public, the submitter need not be notified. Examples of 
exercised authorities prescribing criteria for submission are statutes, 
Executive Orders, regulations, invitations for bids, requests for 
proposals, and contracts. Records or information submitted under these 
authorities are not voluntary in nature. When it is not clear whether 
the information was submitted on a voluntary basis, absent any exercised 
authority, and whether it would customarily be released to the public by 
the submitter, notify the submitter and ask that it describe its 
treatment of the information, and render an objective evaluation. If the 
decision is made to release the information over the objection of the 
submitter, notify the submitter and afford the necessary time to allow 
the submitter to seek a restraining order, or take court action to 
prevent release of the record or information.
    (4) The coordination provisions of this paragraph also apply to any 
non-U.S. Government record in the possession and control of the DoD from 
multi-national organizations, such as the North Atlantic Treaty 
Organization (NATO), United Nations Commands, the North American 
Aerospace Defense Command (NORAD), the Inter-American Defense Board, or 
foreign governments. Coordination with foreign governments under the 
provisions of this paragraph may be made through Department of State, or 
the specific foreign embassy.
    (i) File of initial denials. Copies of all initial denials shall be 
maintained by each DoD Component in a form suitable for rapid retrieval, 
periodic statistical compilation, and management evaluation. Records 
denied for any of the reasons contained in paragraph (b) of this section 
shall be maintained for a period of six years to meet the statute of 
limitations requirement.

[[Page 714]]

    (j) Special mail services. Components are authorized to use 
registered mail, certified mail, certificates of mailing and return 
receipts. However, their use should be limited to instances where it 
appears advisable to establish proof of dispatch or receipt of FOIA 
correspondence. The requester shall be notified that they are 
responsible for the full costs of special services.
    (k) Receipt accounts. The Treasurer of the United States has 
established two accounts for FOIA receipts, and all money orders or 
checks remitting FOIA fees should be made payable to the U.S. Treasurer. 
These accounts, which are described in paragraphs (k)(1) and (k)(2) of 
this section shall be used for depositing all FOIA receipts, except 
receipts for Working Capital and non appropriated funded activities. 
Components are reminded that the below account numbers must be preceded 
by the appropriate disbursing office two digit prefix. Working Capital 
and non appropriated funded activity FOIA receipts shall be deposited to 
the applicable fund.
    (1) Receipt account 3210 sale of publications and reproductions, 
Freedom of Information Act. This account shall be used when depositing 
funds received from providing existing publications and forms that meet 
the Receipt Account Series description found in Federal Account Symbols 
and Titles.
    (2) Receipt account 3210 fees and other charges for services, 
Freedom of Information Act. This account is used to deposit search fees, 
fees for duplicating and reviewing (in the case of commercial 
requesters) records to satisfy requests that could not be filled with 
existing publications or forms.



Sec. 286.24  Appeals.

    (a) General. If the official designated DoD Component to make 
initial determinations on requests for records declines to provide a 
record because the official considers it exempt under one or more of the 
exemptions of the FOIA, that decision may be appealed by the requester, 
in writing, to a designated appellate authority. The appeal should be 
accompanied by a copy of the letter denying the initial request. Such 
appeals should contain the basis for disagreement with the initial 
refusal. Appeal procedures also apply to the disapproval of a fee 
category claim by a requester, disapproval of a request for waiver or 
reduction of fees, disputes regarding fee estimates, review on an 
expedited basis a determination not to grant expedited access to agency 
records, for no record determinations when the requester considers such 
responses adverse in nature, not providing a response determination to a 
FOIA request within the statutory time limits, or any determination 
found to be adverse in nature by the requester. When denials have been 
made under the provisions of the Privacy Act and the FOIA, and the 
denied information is contained in a Privacy Act system of records, 
appeals shall be processed under both the Privacy Act and the FOIA. If 
the denied information is not maintained in a Privacy Act system of 
records, the appeal shall be processed under the FOIA. Appeals of Office 
of the Secretary of Defense and Chairman of the Joint Chiefs of Staff 
determinations may be sent to the address in appendix B of this part. If 
a request is merely misaddressed, and the receiving DoD Component simply 
advises the requester of such and refers the request to the appropriate 
DoD Component, this shall not be considered a no record determination.
    (b) Time of receipt. A FOIA appeal has been received by a DoD 
Component when it reaches the office of an appellate authority having 
jurisdiction. Misdirected appeals should be referred expeditiously to 
the proper appellate authority.
    (c) Time limits. (1) The requester shall be advised to file an 
appeal so that it is postmarked no later than 60 calendar days after the 
date of the initial denial letter. If no appeal is received, or if the 
appeal is postmarked after the conclusion of this 60-day period, the 
appeal may be considered closed. However, exceptions to the above may be 
considered on a case by case basis. In cases where the requester is 
provided several incremental determinations for a single request, the 
time for the appeal shall not begin until the date of the final 
response. Records that are denied shall be retained for a period of six 
years to meet the statute of limitations requirement.

[[Page 715]]

    (2) Final determinations on appeals normally shall be made within 20 
working days after receipt. When a DoD Component has a significant 
number of appeals preventing a response determination within 20 working 
days, the appeals shall be processed in a multitrack processing system, 
based at a minimum, on the three processing tracks established for 
initial requests. See Sec. 286.4(d) of this part. All of the provisions 
of Sec. 286.4(d) apply also to appeals of initial determinations, to 
include establishing additional processing queues as needed.
    (d) Delay in responding to an appeal. (1) If additional time is 
needed due to the unusual circumstances described in Sec. 286.23(f), 
the final decision may be delayed for the number of working days (not to 
exceed 10), that were not used as additional time for responding to the 
initial request.
    (2) If a determination cannot be made and the requester notified 
within 20 working days, the appellate authority shall acknowledge to the 
requester, in writing, the date of receipt of the appeal, the 
circumstances surrounding the delay, and the anticipated date for 
substantive response. Requesters shall be advised that, if the delay 
exceeds the statutory extension provision or is for reasons other than 
the unusual circumstances identified in Sec. 286.23(f), they may 
consider their administrative remedies exhausted. They may, however, 
without prejudicing their right of judicial remedy, await a 
substantiative response. The DoD component shall continue to process the 
case expeditiously.
    (e) Response to the requester. (1) When an appellate authority makes 
a final determination to release all or a portion of records withheld by 
an IDA, a written response and a copy of the records so released should 
be forwarded promptly to the requester after compliance with any 
preliminary procedural requirements, such as payment of fees.
    (2) Final refusal of an appeal must be made in writing by the 
appellate authority or by a designated representative. The response, at 
a minimum, shall include the following:
    (i) The basis for the refusal shall be explained to the requester in 
writing, both with regard to the applicable statutory exemption or 
exemptions invoked under provisions of the FOIA, and with respect to 
other appeal matters as set forth in paragraph (a) of this section.
    (ii) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the cited criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review, with the explanation of how that review 
confirmed the continuing validity of the security classification.
    (iii) The final denial shall include the name and title or position 
of the official responsible for the denial.
    (iv) In the case of appeals for total denial of records, the 
response shall advise the requester that the information being denied 
does not contain meaningful portions that are reasonably segregable.
    (v) When the denial is based upon an exemption 3 statute (subpart C 
of this part), the response, in addition to citing the statute relied 
upon to deny the information, shall state whether a court has upheld the 
decision to withhold the information under the statute, and shall 
contain a concise description of the scope of the information withheld.
    (vi) The response shall advise the requester of the right to 
judicial review.
    (f) Consultation. (1) Final refusal involving issues not previously 
resolved or that the DoD Component knows to be inconsistent with rulings 
of other DoD Components ordinarily should not be made before 
consultation with the DoD Office of the General Counsel.
    (2) Tentative decisions to deny records that raise new or 
significant legal issues of potential significance to other Agencies of 
the Government shall be provided to the DoD Office of the General 
Counsel.

[63 FR 65420, Nov. 25, 1998; 63 FR 67724, Dec. 8, 1998]



Sec. 286.25  Judicial actions.

    (a) General. (1) This section states current legal and procedural 
rules for the convenience of the reader. The statemetns of rules do not 
create

[[Page 716]]

rights or remedies not otherwise available, nor do they bind the 
Department of Defense to particular judicial interpretations or 
procedures.
    (2) A requester may seek an order from a U.S. District Court to 
compel release of a record after administrative remedies have been 
exhausted; i.e., when refused a record by the head of a Component or an 
appellate designee or when the DoD Component has failed to respond with 
the time limits prescribed by the FOIA and in this part.
    (b) Jurisdiction. The requester may bring suit in the U.S. District 
Court in the district in which the requester resides or is the 
requesters place of business, in the district in which the record is 
located, or in the District of Columbia.
    (c) Burden of proof. The burden of proof is on the DoD Component to 
justify its refusal to provide a record. The court shall evaluate the 
case de novo (anew) and may elect to examine any requester record in 
camera (in private) to determine whether the denial was justified.
    (d) Actions by the court. (1) When a DoD Component has failed to 
make a determination within the statutory time limits but can 
demonstrate due diligence in exceptional circumstances, to include 
negotiating with the requester to modify the scope of their request, the 
court may retain jurisdiction and allow the Component additional time to 
complete its review of the records.
    (2) If the court determines that the requester's complaint is 
substantially correct, it may require the United States to pay 
reasonable attorney fees and other litigation costs.
    (3) When the court orders the release of denied records, it may also 
issue a written finding that the circumstances surrounding the 
witholding raise questions whether DoD Component personnel acted 
arbitrarily and capriciously. In these cases, the special counsel of the 
Merit System Protection Board shall conduct an investigation to 
determine whether or not disciplinary action is warranted. The DoD 
Component is obligated to take the action recommended by the special 
counsel.
    (4) The court may punish the responsible official for contempt when 
a DoD Component fails to comply with the court order to produce records 
that it determines have been withheld improperly.
    (e) Non-United States government source information. A requester may 
bring suit in a U.S. District Court to compel the release of records 
obtained from a non-government source or records based on information 
obtained from a non-government source. Such source shall be notified 
promptly of the court action. When the source advises that it is seeking 
court action to prevent release, the DoD Component shall defer answering 
or otherwise pleading to the complainant as long as permitted by the 
Court or until a decision is rendered in the court action of the source, 
whichever is sooner.
    (f) FOIA litigation. Personnel responsible for processing FOIA 
requests at the DoD Component level shall be aware of litigation under 
the FOIA. Such information will provide management insights into the use 
of the nine exemptions by Component personnel. Whenever a complaint 
under the FOIA is filed in a U.S. District Court, the DoD Component 
named in the complaint shall forward a copy of the complaint by any 
means to the Director, Freedom of Information and Security Review with 
an information copy to the DoD Office of the General counsel, ATTN: 
Office of Legal Counsel.



                         Subpart F_Fee Schedule



Sec. 286.28  General provisions.

    (a) Authorities. The Freedom of Information Act, as amended; the 
Paperwork Reduction Act (44 U.S.C. Chapter 35), as amended; the Privacy 
Act of 1974, as amended; the Budget and Accounting Act of 1921 and the 
Budget and Accounting Procedures Act, as amended (see 31 U.S.C.); and 10 
U.S.C. 2328.
    (b) Application. (1) The fees described in this subpart apply to 
FOIA requests, and conform to the Office of Management and Budget 
Uniform Freedom of Information Act Fee Schedule and Guidelines. They 
reflect direct costs for search, review (in the case of commercial 
requesters); and duplication of documents, collection of which is 
permitted by the FOIA. They are neither

[[Page 717]]

intended to imply that fees must be charged in connection with providing 
information to the public in the routine course of business, nor are 
they meant as a substitute for any other schedule of fees, such as DoD 
7000.14-R,\11\ which does not supersede the collection of fees under the 
FOIA. Nothing in this subpart shall supersede fees chargeable under a 
statute specifically providing for setting the level of fees for 
particular types of records. A ``statute specifically providing for 
setting the level of fees for particular types of records'' (5 U.S.C. 
552(a)(4)(a)(vi)) means any statute that enables a Government Agency 
such as the Government Printing Office (GPO) or the National Technical 
Information Service (NTIS), to set and collect fees. Components should 
ensure that when documents that would be responsive to a request are 
maintained for distribution by agencies operating statutory-based fee 
schedule programs such as the GPO or NTIS, they inform requesters of the 
steps necessary to obtain records from those sources.
---------------------------------------------------------------------------

    \11\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (2) The term ``direct costs'' means those expenditures a Component 
actually makes in searching for, reviewing (in the case of commercial 
requesters), and duplicating documents to respond to a FOIA request. 
Direct costs include, for example, the salary of the employee performing 
the work (the basic rate of pay for the employee plus 16 percent of that 
rate to cover benefits), and the costs of operating duplicating 
machinery. These factors have been included in the fee rates prescribed 
at Sec. 286.29 of this subpart. Not included in direct costs are 
overhead expenses such as costs of space, heating or lighting the 
facility in which the records are stored.
    (3) The term ``search'' includes all time spent looking, both 
manually and electronically, for material that is responsive to a 
request. Search also includes a page-by-page or line-by-line 
identification (if necessary) of material in the record to determine if 
it, or portions thereof are responsive to the request. Components should 
ensure that searches are done in the most efficient and least expensive 
manner so as to minimize costs for both the Component and the requester. 
For example, Components should not engage in line-by-line searches when 
duplicating an entire document known to contain responsive information 
would prove to be the less expensive and quicker method of complying 
with the request. Time spent reviewing documents in order to determine 
whether to apply one or more of the statutory exemptions is not search 
time, but review time. See paragraph (b)(5) of this section, for the 
definition of review, and paragraph (c)(5) of this section and Sec. 
286.29(b)(2), for information pertaining to computer searches.
    (4) The term ``duplication'' refers to the process of making a copy 
of a document in response to a FOIA request. Such copies can take the 
form of paper copy, microfiche, audiovisual, or machine readable 
documentation (e.g., magnetic tape or disc), among others. Every effort 
will be made to ensure that the copy provided is in a form that is 
reasonably usable, the requester shall be notified that the copy 
provided is the best available and that the Agency's master copy shall 
be made available for review upon appointment. For duplication of 
computer tapes and audiovisual, the actual cost, including the 
operator's time, shall be charged. In practice, if a Component estimates 
that assessable duplication charges are likely to exceed $25.00, it 
shall notify the requester of the estimate, unless the requester has 
indicated in advance his or her willingness to pay fees as high as those 
anticipated. Such a notice shall offer a requester the opportunity to 
confer with Component personnel with the object of reformulating the 
request to meet his or her needs at a lower cost.
    (5) The term ``review'' refers to the process of examining documents 
located in response to a FOIA request to determine whether one or more 
of the statutory exemptions permit withholding. It also includes 
processing the documents for disclosure, such as excising them for 
release. Review does not include the time spent resolving general legal 
or policy issues regarding the application of exemptions. It should be 
noted that charges for commercial requesters may be assessed

[[Page 718]]

only for the initial review. Components may not charge for reviews 
required at the administrative appeal level of an exemption already 
applied. However, records or portions of records withheld in full under 
an exemption that is subsequently determined not to apply may be 
reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such a subsequent review would be 
properly assessable.
    (c) Fee restrictions. (1) No fees may be charged by any DoD 
Component if the costs of routine collection and processing of the fee 
are likely to equal or exceed the amount of the fee. With the exception 
of requesters seeking documents for a commercial use, Components shall 
provide the first two hours of search time, and the first one hundred 
pages of duplication without charge. For example, for a request (other 
than one from a commercial requester) that involved two hours and ten 
minutes of search time, and resulted in one hundred and five pages of 
documents, a Component would determine the cost of only ten minutes of 
search time, and only five pages of reproduction. If this processing 
cost was equal to, or less than, the cost to the Component for billing 
the requester and processing the fee collected, no charges would result.
    (2) Requesters receiving the first two hours of search and the first 
one hundred pages of duplication without charge are entitled to such 
only once per request. Consequently, if a Component, after completing 
its portion of a request, finds it necessary to refer the request to a 
subordinate office, another DoD Component, or another Federal Agency to 
action their portion of the request, the referring Component shall 
inform the recipient of the referral of the expended amount of search 
time and duplication cost to date.
    (3) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the Component of 
receiving and recording a remittance, and processing the fee for deposit 
in the Department of Treasury's special account. The cost to the 
Department of Treasury to handle such remittance is negligible and shall 
not be considered in Components' determinations.
    (4) For the purposes of these restrictions, the word ``pages'' 
refers to paper copies of a standard size, which will normally be 8\1/
2\x11 or 11x14. Thus, 
requesters would not be entitled to 100 microfiche or 100 computer 
disks, for example. A microfiche containing the equivalent of 100 pages 
or 100 pages of computer printout however, might meet the terms of the 
restriction.
    (5) In the case of computer searches, the first two free hours will 
be determined against the salary scale of the individual operating the 
computer for the purposes of the search. As an example, when the direct 
costs of the computer central processing unit, input-output devices, and 
memory capacity equal $24.00 (two hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time. In the event the direct operating 
cost of the hardware configuration cannot be determined, computer search 
shall be based on the salary scale of the operator executing the 
computer search. See Sec. 286.29, this subpart, for further details 
regarding fees for computer searches.
    (d) Fee waivers. (1) Documents shall be furnished without charge, or 
at a charge reduced below fees assessed to the categories of requesters 
in paragraph (e) of this section when the Component determines that 
waiver or reduction of the fees is in the public interest because 
furnishing the information is likely to contribute significantly to 
public understanding of the operations or activities of the Department 
of Defense and is not primarily in the commercial interest of the 
requester.
    (2) When assessable costs for a FOIA request total $15.00 or less, 
fees shall be waived automatically for all requesters, regardless of 
category.
    (3) Decisions to waive or reduce fees that exceed the automatic 
waiver threshold shall be made on a case-by-case basis, consistent with 
the following factors:
    (i) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public

[[Page 719]]

understanding of the operations or activities of the Government.''
    (A) The subject of the request. Components should analyze whether 
the subject matter of the request involves issues that will 
significantly contribute to the public understanding of the operations 
or activities of the Department of Defense. Requests for records in the 
possession of the Department of Defense which were originated by non-
government organizations and are sought for their intrinsic content, 
rather than informative value, will likely not contribute to public 
understanding of the operations or activities of the Department of 
Defense. An example of such records might be press clippings, magazine 
articles, or records forwarding a particular opinion or concern from a 
member of the public regarding a DoD activity. Similarly, disclosures of 
records of considerable age may or may not bear directly on the current 
activities of the Department of Defense; however, the age of a 
particular record shall not be the sole criteria for denying relative 
significance under this factor. It is possible to envisage an 
informative issue concerning the current activities of the Department of 
Defense, based upon historical documentation. Requests of this nature 
must be closely reviewed consistent with the requester's stated purpose 
for desiring the records and the potential for public understanding of 
the operations and activities of the Department of Defense.
    (B) The informative value of the information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determinate whether disclosure is 
meaningful, and shall inform the public on the operations or activities 
of the Department of Defense. While the subject of a request may contain 
information that concerns operations or activities of the Department of 
Defense, it may not always hold great potential for contributing to a 
meaningful understanding of these operations or activities. An example 
of such would be a previously released record that has been heavily 
redacted, the balance of which may contain only random words, fragmented 
sentences, or paragraph headings. A determination as to whether a record 
in this situation will contribute to the public understanding of the 
operations or activities of the Department of Defense must be approached 
with caution, and carefully weighed against the arguments offered by the 
requester. Another example is information already known to be in the 
public domain. Disclosure of duplicative, or nearly identical 
information already existing in the public domain may add no meaningful 
new information concerning the operations and activities of the 
Department of Defense.
    (C) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. The key element in 
determining the applicability of this factor is whether disclosure will 
inform, or have the potential to inform the public, rather than simply 
the individual requester or small segment of interested persons. The 
identity of the requester is essential in this situation in order to 
determine whether such requester has the capability and intention to 
disseminate the information to the public. Mere assertions of plans to 
author a book, researching a particular subject, doing doctoral 
dissertation work, or indigence are insufficient without demonstrating 
the capacity to further disclose the information in a manner that will 
be informative to the general public. Requesters should be asked to 
describe their qualifications, the nature of their research, the purpose 
of the requested information, and their intended means of dissemination 
to the public.
    (D) The significance of the contribution to public understanding. In 
applying this factor, Components must differentiate the relative 
significance or impact of the disclosure against the current level of 
public knowledge, or understanding which exists before the disclosure. 
In other words, will disclosure on a current subject of wide public 
interest be unique in contributing unknown facts, thereby enhancing 
public knowledge, or will it basically duplicate what is already known 
by the general public? A decision regarding significance requires 
objective judgment, rather than subjective determination, and must be 
applied carefully to determine whether

[[Page 720]]

disclosure will likely lead to a significant understanding of the issue. 
Components shall not make value judgments as to whether the information 
is important enough to be made public.
    (ii) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (A) The existence and magnitude of a commercial interest. If the 
request is determined to be of a commercial interest, Components should 
address the magnitude of that interest to determine if the requester's 
commercial interest is primary, as opposed to any secondary personal or 
non-commercial interest. In addition to profitmaking organizations, 
individual persons or other organizations may have a commercial interest 
in obtaining certain records. Where it is difficult to determine whether 
the requester is of a commercial nature, Components may draw inference 
from the requester's identity and circumstances of the request. In such 
situations, the provisions of paragraph (e) of this section apply. 
Components are reminded that in order to apply the commercial standards 
of the FOIA, the requester's commercial benefit must clearly override 
any personal or non-profit interest.
    (B) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, Components should then 
determine if the disclosure would be primarily in that interest. This 
requires a balancing test between the commercial interest of the request 
against any public benefit to be derived as a result of that disclosure. 
Where the public interest is served above and beyond that of the 
requester's commercial interest, a waiver or reduction of fees would be 
appropriate. Conversely, even if a significant public interest exists, 
and the relative commercial interest of the requester is determined to 
be greater than the public interest, then a waiver or reduction of fees 
would be inappropriate. As examples, news media organizations have a 
commercial interest as business organizations; however, their inherent 
role of disseminating news to the general public can ordinarily be 
presumed to be of a primary interest. Therefore, any commercial interest 
becomes secondary to the primary interest in serving the public. 
Similarly, scholars writing books or engaged in other forms of academic 
research, may recognize a commercial benefit, either directly, or 
indirectly (through the institution they represent); however, normally 
such pursuits are primarily undertaken for educational purposes, and the 
application of a fee charge would be inappropriate. Conversely, data 
brokers or others who merely compile government information for 
marketing can normally be presumed to have an interest primarily of a 
commercial nature.
    (4) Components are reminded that the factors and examples used in 
this subsection are not all inclusive. Each fee decision must be 
considered on a case-by-case basis and upon the merits of the 
information provided in each request. When the element of doubt as to 
whether to charge or waive the fee cannot be clearly resolved, 
Components should rule in favor of the requester.
    (5) In addition, the following circumstances describe situations 
where waiver or reduction of fees are most likely to be warranted:
    (i) A record is voluntarily created to prevent an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (ii) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g. $15.00-$30.00).
    (e) Fee assessment. (1) Fees may not be used to discourage 
requesters, and to this end, FOIA fees are limited to standard charges 
for direct document search, review (in the case of commercial 
requesters) and duplication.
    (2) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, Components shall adhere to 
the following procedures:
    (i) Analyze each request to determine the category of the requester. 
If the Component determination regarding the category of the requester 
is different than that claimed by the requester, the Component shall:
    (A) Notify the requester to provide additional justification to 
warrant the category claimed, and that a search for responsive records 
will not be initiated

[[Page 721]]

until agreement has been attained relative to the category of the 
requester. Absent further category justification from the requester, and 
within a reasonable period of time (i.e., 30 calendar days), the 
Component shall render a final category determination, and notify the 
requester of such determination, to include normal administrative appeal 
rights of the determination.
    (B) Advise the requester that, notwithstanding any appeal, a search 
for responsive records will not be initiated until the requester 
indicates a willingness to pay assessable costs appropriate for the 
category determined by the Component.
    (ii) Requesters should submit a fee declaration appropriate for the 
following categories.
    (A) Commercial. Requesters should indicate a willingness to pay all 
search, review and duplication costs.
    (B) Educational or noncommercial scientific institution or news 
media. Requesters should indicate a willingness to pay duplication 
charges in excess of 100 pages if more than 100 pages of records are 
desired.
    (C) All others. Requesters should indicate a willingness to pay 
assessable search and duplication costs if more than two hours of search 
effort or 100 pages of records are desired.
    (iii) If the above conditions are not met, then the request need not 
be processed and the requester shall be so informed.
    (iv) In the situations described by paragraphs (e)(2)(i) and 
(e)(2)(ii) of this section, Components must be prepared to provide an 
estimate of assessable fees if desired by the requester. While it is 
recognized that search situations will vary among Components, and that 
an estimate is often difficult to obtain prior to an actual search, 
requesters who desire estimates are entitled to such before committing 
to a willingness to pay. Should Components' actual costs exceed the 
amount of the estimate or the amount agreed to by the requester, the 
amount in excess of the estimate or the requester's agreed amount shall 
not be charged without the requester's agreement.
    (v) No DoD Component may require advance payment of any fee; i.e., 
payment before work is commenced or continued on a request, unless the 
requester has previously failed to pay fees in a timely fashion, or the 
agency has determined that the fee will exceed $250.00. As used in this 
sense, a timely fashion is 30 calendar days from the date of billing 
(the fees have been assessed in writing) by the Component.
    (vi) Where a Component estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the Component shall notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payments, or require an advance payment of an amount 
up to the full estimated charges in the case of requesters with no 
history of payment.
    (vii) Where a requester has previously failed to pay a fee charged 
in a timely fashion (i.e., within 30 calendar days from the date of the 
billing), the Component may require the requester to pay the full amount 
owed, plus any applicable interest, or demonstrate that he or she has 
paid the fee, and to make an advance payment of the full amount of the 
estimated fee before the Component begins to process a new or pending 
request from the requester. Interest will be at the rate prescribed in 
31 U.S.C. 3717, and confirmed with respective Finance and Accounting 
Offices.
    (viii) After all work is completed on a request, and the documents 
are ready for release, Components may request payment before forwarding 
the documents, particularly for those requesters who have no payment 
history, or for those requesters who have failed previously to pay a fee 
in a timely fashion (i.e., within 30 calendar days from the date of the 
billing). In the case of the latter, the previsions of paragraph 
(e)(2)(vii) of this section, apply.
    (ix) When Components act under paragraphs (e)(2)(i) through 
(e)(2)(vii) of this section, the administrative time limits of the FOIA 
will begin only after the Component has received a willingness to pay 
fees and satisfaction as to category determination, or fee payments (if 
appropriate).
    (x) Components may charge for time spent searching for records, even 
if

[[Page 722]]

that search fails to locate records responsive to the request. 
Components may also charge search and review (in the case of commercial 
requesters) time in records located are determined to be exempt from 
disclosure. In practice, if the Components estimates that search charges 
are likely to exceed $25.00, it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer the requester the opportunity to confer with 
Component personnel with the object or reformulating the request to meet 
his or her needs at a lower cost.
    (3) Commercial requesters. Fees shall be limited to reasonable 
standard charges for document search, review and duplication when 
records are requested for commerical use. Requesters must reasonably 
describe the records sought. (See Sec. 286.4(h)).
    (i) The term ``commercial use'' request refers to a request from, or 
on behalf of one who seeks information for a use or purpose that 
furthers the commercial, trade, or profit interest of the requester or 
the person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category. Components must determine 
the use to which a requester will put the documents requested. Moreover, 
where a Component has reasonable cause to doubt the use to which a 
requester will put the records sought, or where that use is not clear 
from the request itself, Components should seek additional clarification 
before assigning the request to a specific category.
    (ii) When Components receive a request for documents for commercial 
use, they should assess charges which recover the full direct costs of 
searching for, reviewing for release, and duplicating the records 
sought. Commerical requesters (unlike other requesters) are not entitled 
to two hours of free search time, nor 100 free pages of reproduction of 
documents. Moreover, commerical requesters are not normally entitled to 
a waiver or reduction of fees based upon an assertion that disclosure 
would be in the public interest. However, because use is the exclusive 
determining criteria, it is possible to envision a commerical enterprise 
making a request that is not for commercial use. It is also possible 
that a non-profit organization could make a request that is for 
commerical use. Such situations must be addressed on a case-by-case 
basis.
    (4) Educational institution requesters. Fees shall be limited to 
only reasonable standard charges for document duplication (excluding 
charges for the first 100 pages) when the request is made by an 
educational institution whose purpose is scholarly research. Requesters 
must reasonably describe the records sought (see Sec. 286.4(h).). The 
term ``educational institution'' refers to a pre-school, a public or 
private elementary or secondary school, an institution of graduate high 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research. 
Fees shall be waived or reduced in the public interest if the criteria 
of paragraph (d) of this section, have been met.
    (5) Non-commercial scientific institution requesters. Fees shall be 
limited to only reasonable standard charges for document duplication 
(excluding charges for the first 100 pages) when the request is made by 
a non-commerical scientific institution whose purpose is scientific 
research. Requesters must reasonbly describe the records sought (see 
Sec. 286.4(h)). The term ``non-commercial scientific institution'' 
refers to an institution that is not operated on a ``commercial'' basis 
as defined in paragraph (e)(3) of this section, and that is operated 
solely for the purpose of conducting scientific research, the results of 
which are not intended to promote any particular product or industry. 
Fees shall be waived or reduced in the public interest if the criteria 
of paragraph (d) of this section, have beem met.
    (6) Components shall provide documents to requesters in paragraphs 
(e)(4) and (e)(5) of this section for the cost of duplication alone, 
excluding charges for the first 100 pages. To be eligible for inclusion 
in these categories, requesters must show that the request

[[Page 723]]

is being made under the auspices of a qualifying institution and that 
the records are not sought for commercial use, but in furtherance of 
scholarly (from an educational institution) or scientific (from a non-
commercial scientific institution) research.
    (7) Representatives of the news media. Fees shall be limited to only 
reasonable standard charges for document duplication (excluding charges 
for the first 100 pages) when the request is made by a representative of 
the news media. Requesters must reasonably describe the records sought 
(see Sec. 286.4(h)). Fees shall be waived or reduced if the criteria of 
paragraph (d) of this section, have been met.
    (i) The term ``representative of the news media'' refers to any 
person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not meant to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of ``freelance'' journalists they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but Components may also look to the past publication 
record of a requester in making this determination.
    (ii) To be eligible for inclusion in this category, a requester must 
meet the criteria in paragraph (e)(7)(i) of this section, and his or her 
request must not be made for commercial use. A request for records 
supporting the news dissemination function of the requester shall not be 
considered to be a request that is for a commercial use. For example, a 
document request by a newspaper for records relating to the 
investigation of a defendant in a current criminal trial of public 
interest could be presumed to be a request from an entity eligible for 
inclusion in this category, and entitled to records at the cost of 
reproduction alone (excluding charges for the first 100 pages).
    (iii) ``Representative of the news media'' does not include private 
libraries, private repositories of Government records, information 
vendors, data brokers or similar marketers of information whether to 
industries and businesses, or other entities.
    (8) All other requesters. Components shall charge requesters who do 
not fit into any of the categories described in paragraphs (e)(3), 
(e)(4), (e)(5), or (e)(7) of this section, fees which recover the full 
direct cost of searching for and duplicating records, except that the 
first two hours of search time and the first 100 pages of duplication 
shall be furnished without charge. Requesters must reasonably describe 
the records sought (see Sec. 286.4(h)). Requests from subjects about 
themselves will continue to be treated under the fee provisions of the 
Privacy Act of 1974, which permit fees only for duplication. Components 
are reminded that this category of requester may also be eligible for a 
waiver or reduction of fees if disclosure of the information is in the 
public interest as defined under paragraph (d)(1) of this section. (See 
also paragraph (e)(3)(ii) of this section.)
    (f) Aggregating requests. Except for requests that are for a 
commercial use, a Component may not charge for the first two hours of 
search time or for the first 100 pages of reproduction. However, a 
requester may not file multiple requests at the same time, each seeking 
portions of a document of documents, solely in order to avoid payment of 
fees. When a Component reasonably believes that a requester or, on rare 
occasions, a group of requesters acting on concert, is attempting to 
break a request down into a series of requests for the purpose of 
avoiding the assessment of fees, the Agency may aggregate any such 
requests and charge accordingly. One element to be considered in 
determining whether a belief

[[Page 724]]

would be reasonable is the time period in which the requests have 
occurred. For example, it would be reasonable to presume that multiple 
requests of this type made within a 30 day period had been made to avoid 
fees. For requests made over a longer period however, such a presumption 
becomes harder to sustain and Components should have a solid basis for 
determining that aggregation is warranted in such cases. Components are 
cautioned that before aggregating requests from more than one requester, 
they must have a concrete basis on which to conclude that the requesters 
are acting in concert and are acting specifically to avoid payment of 
fees. In no case may Components aggregate multiple requests on unrelated 
subjects from one requester.
    (g) Effect of the Debt Collection Act of 1982 (5 U.S.C. 5515 note). 
The Debt Collection Act of 1982 (5 U.S.C. 5515 note) provides for a 
minimum annual rate of interest to be charged on overdue debts owed the 
Federal Government. Components may levy this interest penalty for any 
fees that remain outstanding 30 calendar days from the date of billing 
(the first demand notice) to the requester of the amount owed. The 
interest rate shall be as prescribed in 31 U.S.C. 3717. Components 
should verify the current interest rate with respective Finance and 
Accounting Offices. After one demand letter has been sent, and 30 
calendar days have lapsed with no payment, Components may submit the 
debt to respective Finance and Accounting Offices for collection 
pursuant to 5 U.S.C. 5515 note.
    (h) Computation of fees. The fee schedule in this subpart shall be 
used to compute the search, review (in the case of commercial 
requesters) and duplication costs associated with processing a given 
FOIA request. Costs shall be computed on time actually spent. Neither 
time-based nor dollar-based minimum charges for search, review and 
duplication are authorized. The appropriate fee category of the 
requester shall be applied before computing fees.
    (i) Refunds. In the event that a Component discovers that it has 
overcharged a requester or a requester has overpaid, the Component shall 
promptly refund the charge to the requester by reimbursement methods 
that are agreeable to the requester and the Component.



Sec. 286.29  Collection of fees and fee rates.

    (a) Collection of fees. Collection of fees will be made at the time 
of providing the documents to the requester or recipient when the 
requester specifically states that the costs involved shall be 
acceptable or acceptable up to a specified limit that covers the 
anticipated costs. Collection of fees may not be made in advance unless 
the requester has failed to pay previously assessed fees within 30 
calendar days from the date of the billing by the DoD Component, or the 
Component has determined that the fee will be in excess of $250 (see 
Sec. 286.28(e)).
    (b) Search time--(1) Manual search.

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade             Rate
------------------------------------------------------------------------
Clerical.............................  E1-E9/GS1-GS8..........    $20.00
Professional.........................  O1-O6/GS9-GS15.........     44.00
Executive............................  ES1-ES6/O7-O10.........     75.00
Contractor...........................  .......................     44.00
------------------------------------------------------------------------

    (2) Computer search. Fee assessments for computer search consists of 
two parts; individual time (hereafter referred to as human time), and 
machine time.
    (i) Human time. Human time is all the time spent by humans 
performing the necessary tasks to prepare the job for a machine to 
execute the run command. If execution of a run requires monitoring by a 
human, that human time may be also assessed as computer search. The 
terms ``programmer/operator'' shall not be limited to the traditional 
programmers or operators. Rather, the terms shall be interpreted in 
their broadest sense to incorporate any human involved in performing the 
computer job (e.g. technician, administrative support, operator, 
programmer, database administrator, or action officer).
    (ii) Machine time. Machine time involves only direct costs of the 
Central Processing Unit (CPU), input/output devices, and memory capacity 
used in the actual computer configuration. Only this CPU rate shall be 
charged. No other machine related costs shall be charged. In situations 
where the capability does not exist to calculate CPU

[[Page 725]]

time, no machine costs can be passed on to the requester. When CPU 
calculations are not available, only human time costs shall be assessed 
to requesters. Should DoD Components lease computers, the services 
charged by the lessor shall not be passed to the requester under the 
FOIA.
    (c) Duplication.

------------------------------------------------------------------------
                  Type                         Cost per Page (cents)
------------------------------------------------------------------------
Pre-Printed material....................  02
Office copy.............................  15
Microfiche..............................  25
Computer copies (tapes, discs or          Actual cost of duplicating the
 printouts).                               tape, disc or printout
                                           (includes operator's time and
                                           cost of the medium)
------------------------------------------------------------------------

    (d) Review time (in the case of commercial requesters).

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade             Rate
------------------------------------------------------------------------
Clerical.............................  E1-E9/GS1-GS8..........    $20.00
Professional.........................  O1-O6/GS9-GS15.........     44.00
Executive............................  ES1-ES6/O7-O10.........     75.00
Contractor...........................  .......................     44.00
------------------------------------------------------------------------

    (e) Audiovisual documentary materials. Search costs are computed as 
for any other record. Duplication cost is the actual direct cost of 
reproducing the material, including the wage of the person doing the 
work. Audiovisual materials provided to a requester need not be in 
reproducible format or quality.
    (f) Other records. Direct search and duplication cost for any record 
not described in this section shall be computed in the manner described 
for audiovisual documentary material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the Components. Neither the FOIA, nor 
its fee structure cover these kinds of services. Therefore, Components 
may recover the costs of special services requested by the requester 
after agreement has been obtained in writing from the requester to pay 
for one or more of the following services:
    (1) Certifying that records are true copies.
    (2) Sending records by special methods such as express mail, etc.

[63 FR 65420, Nov. 25, 1998, as amended at 67 FR 31128, May 9, 2002]



Sec. 286.30  Collection of fees and fee rates for technical data.

    (a) Fees for technical data. Technical data, other than technical 
data that discloses critical technology with military or space 
application, if required to be released under the FOIA, shall be 
released after the person requesting such technical data pays all 
reasonable costs attributed to search, duplication and review of the 
records to be released. Technical data, as used in this section, means 
recorded information, regardless of the form or method of the recording 
of a scientific or technical nature (including computer software 
documentation). This term does not include computer software, or data 
incidental to contract administration, such as financial and/or 
management information. DoD Components shall retain the amounts received 
by such a release, and it shall be merged with and available for the 
same purpose and the same time period as the appropriation from which 
the costs were incurred in complying with request. All reasonable costs 
as used in this sense are the full costs to the Federal Government of 
rendering the service, or fair market value of the service, whichever is 
higher. Fair market value shall be determined in accordance with 
commercial rates in the local geographical area. In the absence of a 
known market value, charges shall be based on recovery of full costs to 
the Federal Government. The full costs shall include all direct and 
indirect costs to conduct the search and to duplicate the records 
responsive to the request. This cost is to be differentiated from the 
direct costs allowable under Sec. 286.29 of this subpart for other 
types of information released under the FOIA.
    (b) Waiver. Components shall waive the payment of costs required in 
paragraph (a) of this section, which are greater than the costs that 
would be required for release of this same information under Sec. 
286.29 of this subpart if:
    (1) The request is made by a citizen of the United States or a 
United States corporation, and such citizen or corporation certifies 
that the technical data requested is required to enable it to submit an 
offer, or determine whether it is capable of submitting an offer to 
provide the product to which the

[[Page 726]]

technical data relates to the United States or a contractor with the 
United States. However, Components may require the citizen or 
corporation to pay a deposit in an amount equal to not more than the 
cost of complying with the request, which will be refunded upon 
submission of an offer by the citizen or corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or
    (3) The Component determines in accordance with Sec. 286.28(d)(1), 
that such a waiver is in the interest of the United States.
    (c) Fee rates--(1) Search time--(i) Manual search: clerical.

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade             rate
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......    $13.25
(Minimum Charge).....................  .......................      8.30
------------------------------------------------------------------------

    (ii) Manual search: professional and executive (To be established at 
actual hourly rate prior to search. A minimum charge will be established 
at \1/2\ hourly rates).
    (2) Computer search is based on the total cost of the central 
processing unit, input-output devices, and memory capacity of the actual 
computer configuration. The wage (based upon the scale in paragraph 
(c)(1)(i) of this section) for the computer operator and/or programmer 
determining how to conduct, and subsequently executing the search will 
be recorded as part of the computer search. See Sec. 286.29(b)(2) for 
further details regarding computer search.
    (3) Duplication.

------------------------------------------------------------------------
                              Type                                 Cost
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts,          $2.50
 blueprints, and other technical engineering documents.........
Engineering data (microfilm):
    (i) Aperture cards.........................................
    (A) Silver duplicate negative, per card....................      .75
    When key punched and verified, per card....................      .85
    (B) Diazo duplicate negative, per card.....................      .65
    When key punched and verified, per card....................      .75
    (ii) 35mm roll film, per frame.............................      .50
    (iii) 16mm roll film, per frame............................      .45
    (iv) Paper prints (engineering drawings), each.............     1.50
    (v) Paper reprints of microfilm indices, each..............      .10
------------------------------------------------------------------------

    (4) Review time--(i) Clerical.

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade           rate ($)
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......     13.25
(Minimum Charge).....................  .......................      8.30
------------------------------------------------------------------------

    (ii) Professional and executive (To be established at actual hourly 
rate prior to review. A minimum charge will be established at \1/2\ 
hourly rates).
    (d) Other technical data records. Charges for any additional 
services not specifically provided in paragraph (c) of this section, 
consistent with Volume 11A of DoD 7000.14-R, shall be made by Components 
at the following rates:

(1) Minimum charge for office copy (up to six images)...........   $3.50
(2) Each additional image.......................................     .10
(3) Each typewritten page.......................................    3.50
(4) Certification and validation with seal, each................    5.20
(5) Hand-drawn plots and sketches, each hour or fraction thereof   12.00
 



                            Subpart G_Reports



Sec. 286.33  Reports control.

    (a) General. (1) The Annual Freedom of Information Act Report is 
mandated by the statute and reported on a fiscal year basis. Due to the 
magnitude of the requested statistics and the need to ensure accuracy of 
reporting, DoD Components shall track this data as requests are 
processed. This will also facilitate a quick and accurate compilation of 
statistics. DoD Components shall forward their report to the Directorate 
for Freedom of Information and Security Review no later than November 30 
following the fiscal year's close. It may be submitted electronically 
and via hard copy accompanied by a computer diskette. In turn, DoD will 
produce a consolidated report for submission to the Attorney General, 
and ensure that a copy of the DoD consolidated report is placed on the 
Internet for public access.
    (2) Existing DoD standards and registered data elements are to be 
utilized to the greatest extent possible in accordance with the 
provisions of DoD Manual 8320.1-M,\12\ ``Data Administration 
Procedures.''
---------------------------------------------------------------------------

    \12\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------

    (3) The reporting requirement outlined in this subpart is assigned 
Report

[[Page 727]]

Control Symbol DD-DA&M(A)1365, Freedom of Information Act Report to 
Congress.
    (b) Annual Report. The current edition of DD Form 2564 shall be used 
to submit component input. DD Form 2564 is available on the Internet at 
http://www.defenselink.mil/pubs/ under Regulations and Forms. 
Instructions for completion follow:
    (1) Item 1: Initial request determinations. Please note that initial 
Privacy Act requests which are also processed as initial FOIA requests 
are reported here. They will also be reported as ``Privacy Act 
requests'' on the Annual Privacy Act Report. See Sec. 286.4(m), 
Relationship between the FOIA and the Privacy Act (PA).
    (i) Total requests processed. Enter the total number of initial FOIA 
requests responded to (completed) during the fiscal year. Since more 
than one action frequently is taken on a completed case, total actions 
(see (b)(1)(vi) of this section) the sum of Items (b)(1)(ii) through 
(b)(1)(v) of this section, may exceed total requests processed (See 
appendix E of this part for form layout.)
    (ii) Granted in full. Enter the total number of initial FOIA 
requests responded to that were granted in full during the fiscal year. 
(This may include requests granted by your office, yet still requiring 
action by another office.)
    (iii) Denied in part. Enter the total number of initial FOIA 
requests responded to and denied in part based on one or more of the 
FOIA exemptions. (Do not report ``other reason responses'' as a partial 
denial here, unless a FOIA exemption is used also.)
    (iv) Denied in full. Enter the total number of initial FOIA requests 
responded to and denied in full based on one or more of the FOIA 
exemptions. (Do not report ``other reason responses'' as denials here, 
unless a FOIA exemption is used also.)
    (v) ``Other reason'' responses. Enter the total number of initial 
FOIA requests in which you were unable to provide all or part of the 
requested information based on an ``other reason'' response. Paragraph 
(b)(2)(ii) of this section explains the nine possible ``other reasons.''
    (vi) Total actions. Enter the total number of FOIA actions taken 
during the fiscal year. This number will be the sum of (b)(1)(ii) 
through (b)(1)(v) of this section. Total actions must be equal to or 
greater than the number of total requests processed (paragraph (b)(1)(i) 
of this section).
    (2) Item 2: Initial request exemptions and other reasons--(i) 
Exemptions invoked on initial request determinations. Enter the number 
of times an exemption was claimed for each request that was denied in 
full or in part. Since more than one exemption may be claimed when 
responding to a single request, this number will be equal to or greater 
than the sum of (b)(1)(iii) and (b)(1)(iv) of this section. The (b)(7) 
exemption is reported by subcategories identified in paragraphs 
(b)(2)(i)(A) through (b)(2)(i)(F) of this section:
    (A) Interfere with enforcement;
    (B) Fair trial right;
    (C) Invasion of privacy;
    (D) Protect confidential source;
    (E) Disclose techniques; and
    (F) Endanger life or safety.
    (ii) ``Other reasons'' cited on initial determinations. Identify the 
``other reason'' response cited when responding to a FOIA request and 
enter the number of times each was claimed.
    (A) No records. Enter the number of times a reasonable search of 
files failed to identify records responsive to subject request.
    (B) Referrals. Enter the number of times a request was referred to 
another DoD Component or Federal Agency for action.
    (C) Request withdrawn. Enter the number of times a request and/or 
appeal was withdrawn by a requester. (For appeals, report number in Item 
4b on the report form. (See appendix E of this part.))
    (D) Fee-related reason. Requester is unwilling to pay the fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with a fee 
estimate.
    (E) Records not reasonably described. Enter the number of times a 
FOIA request could not be acted upon since the record had not been 
described with sufficient particularity to enable the DoD

[[Page 728]]

Component to locate it by conducting a reasonable search.
    (F) Not a proper FOIA request for some other reason. Enter the 
number of times the requester has failed unreasonably to comply with 
procedural requirements, other than fee-related (described in paragraph 
(b)(2)(ii)(D) of this section), imposed by this part or a DoD 
Component's supplementing regulation.
    (G) Not an agency record. Enter the number of times a requester was 
provided a response indicating the requested information was not a 
record within the meaning of the FOIA and this part.
    (H) Duplicate request. Record number of duplicate requests closed 
for that reason (e.g., request for the same information by the same 
requester). This includes identical requests received via different 
means (e.g., electronic mail, facsimile, mail, courier) at the same or 
different times.
    (I) Other (specify). Any other reason a requester does not comply 
with published rules, other than those reasons outlined in paragraphs 
(b)(2)(ii)(A) through (b)(2)(ii)(H) of this section.
    (J) Total. Enter the sum of paragraphs (b)(2)(ii)(A) through 
(b)(2)(ii)(I) of this section in the block provided on the form. This 
number will be equal to or greater than the number in paragraph 
(b)(1)(v) of this section since more than one reason may be claimed for 
each ``other reason'' response.
    (iii) (b)(3) statutes invoked on initial determinations. Identify 
the number of times you have used a specific statute to support each 
(b)(3) exemption. List the statutes used to support each (b)(3) 
exemption; the number of instances in which the statute was cited; note 
whether or not the statute has been upheld in a court hearing; and 
provide a concise description of the material withheld in each 
individual case by the statute's use. Ensure you cite the specific 
sections of the acts invoked. The total number of instances reported 
will be equal to or greater than the total number of (b)(3) exemptions 
listed in Item 2a on the report form.
    (3) Item 3: Appeal determinations. Please note that Privacy Act 
appeals which are also processed as FOIA appeals are reported here. They 
will also be reported as ``Privacy Act appeals'' on the Annual Privacy 
Act Report. See Sec. 286.4(m), Relationship Between the FOIA and the 
Privacy Act (PA).
    (i) Total appeal responses. Enter the total number of FOIA appeals 
responded to (completed) during the fiscal year.
    (ii) Granted in full. Enter the total number of FOIA appeals 
responded to and granted in full during the year.
    (iii) Denied in part. Enter the total number of FOIA appeals 
responded to and denied in part based on one or more of the FOIA 
exemptions. (Do not report ``other reason responses'' as a partial 
denial here, unless a FOIA exemption is used also.)
    (iv) Denied in Full. Enter the total number of FOIA appeals 
responded to and denied in full based on one or more of the FOIA 
exemptions. (Do not report ``other reason responses'' as denials here, 
unless a FOIA exemption is used also.)
    (v) ``Other reason'' responses. Enter the total number of FOIA 
appeals in which you were unable to provide the requested information 
based on an ``other reason'' response (as outlined in ``other reasons'' 
in paragraph (b)(2)(ii) of this section).
    (vi) Total actions. Enter the total number of FOIA appeal actions 
taken during the fiscal year. This number will be the sum of paragraphs 
(b)(3)(ii) through (b)(3)(v) of this section, and should be equal to or 
greater than the number of total appeal responses, paragraph (b)(3)(i) 
of this section.
    (4) Item 4: Appeal exemptions and other reasons--(i) Exemptions 
invoked on appeal determinations. Enter the number of times an exemption 
was claimed for each appeal that was denied in full or in part. Since 
more than one exemption may be claimed when responding to a single 
request, this number will be equal to or greater than the sum of 
paragraphs (b)(3)(iii) and (b)(3)(iv) of this section. Note that the 
(b)(7) exemption is reported by subcategories identified in paragraphs 
(b)(4)(i)(A) through (b)(4)(i)(F) of this section:
    (A) Interfere with enforcement;
    (B) Fair trial right;
    (C) Invasion of privacy;
    (D) Protect confidential source;
    (E) Disclose techniques; and

[[Page 729]]

    (F) Endanger life or safety.
    (ii) ``Other reasons'' cited on appeal determinations. Identify the 
``other reason'' response cited when responding to a FOIA appeal and 
enter the number of times each was claimed. See paragraph (b)(2)(ii) of 
this section for description of ``other reasons.'' This number may be 
equal to or possibly greater than the number in paragraph (b)(3)(v) of 
this section since more than one reason may be claimed for each ``other 
reason'' response.
    (iii) (b)(3) statutes invoked on appeal determinations. Identify the 
number of times a specific statute has been used to support each (b)(3) 
exemption identified in item 4a on the report form (Appendix E of this 
part). List the statutes used to support each (b)(3) exemption; the 
number of instances in which the statute was cited; note whether or not 
the statute has been upheld in a court hearing; and provide a concise 
description of the material withheld in each individual case by the 
statute's use. Ensure citation to the specific sections of the statute 
invoked. The total number of instances reported will be equal to or 
greater than the total number of (b)(3) exemptions listed in Item 4a on 
the report form.
    (5) Item 5: Number and median age of initial cases pending: (i) 
Total initial cases pending:
    (ii) Beginning and ending report period: Midnight, 2400 hours, 
September 30 of the Preceding Year--OR--0001 hours, October 1 is the 
beginning of the report period. Midnight, 2400 hours, is the close of 
the reporting period.
    (iii) Median age of initial requests pending: Report the median age 
in days (including holidays and weekends) of initial requests pending.
    (iv) Examples of median calculation. (A) If given five cases aged 
10, 25, 35, 65, and 100 days from date of receipt as of the previous 
September 30th, the total requests pending is five (5). The median age 
(days) of open requests is the middle, not average value, in this set of 
numbers (10, 25, 35, 65, and 100), 35 (the middle value in the set).
    (B) If given six pending cases, aged 10, 20, 30, 50, 120, and 200 
days from date of receipt, as of the previous September 30th, the total 
requests pending is six (6). The median age (days) of open requests 40 
days (the mean [average] of the two middle numbers in the set, in this 
case the average of middle values 30 and 50).
    (v) Accuracy of calculations. Components must ensure the accuracy of 
calculations. As backup, the raw data used to perform calculations 
should be recorded and preserved. This will enable recalculation of 
median (and mean values) as necessary. Components may require 
subordinate elements to forward raw data, as deemed necessary and 
appropriate.
    (vi) Average. If a Component believes that ``average'' (mean) 
processing time is a better measure of performance, then report 
``averages'' (means) as well as median values (e.g., with data reflected 
and plainly labeled on plain bond as an attachment to the report). 
However, ``average'' (mean) values will not be included in the 
consolidated DoD report unless all Components report it.
    (6) Item 6: Number of initial requests received during the fiscal 
year. Enter the total number of initial FOIA requests received during 
the reporting period (fiscal year being reported).
    (7) Item 7: Types of requests processed and median age. Information 
is reported for three types of initial requests completed during the 
reporting period: Simple; Complex; and Expedited Processing. The 
following items of information are reported for these requests:
    (i) Total number of initial requests. Enter the total number of 
initial requests processed [completed] during the reporting period 
(fiscal year) by type (Simple, Complex and Expedited Processing) in the 
appropriate row on the form.
    (ii) Median age (days). Enter the median number of days [calendar 
days including holidays and weekends] required to process each type of 
case (Simple, Complex and Expedited Processing) during the period in the 
appropriate row on the form.
    (iii) Example. Given seven initial requests, multitrack--simple 
completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400 
days when completed. The total number of requests completed was seven 
(7). The median age (days) of completed requests is 65, the middle value 
in the set.

[[Page 730]]

    (8) Item 8: Fees collected from the public. Enter the total amount 
of fees collected from the public during the fiscal year. This includes 
search, review and reproduction costs only.
    (9) Item 9: FOIA program costs--(i) Number of full time staff. Enter 
the number of personnel your agency had dedicated to working FOIA full 
time during the fiscal year. This will be expressed in work-years 
(manyears). For example: ``5.1, 3.2, 1.0, 6.5, et al.'' A sample 
calculation follows:

----------------------------------------------------------------------------------------------------------------
                                            Number
                Employee                   (months     Work-years                       Note
                                           worked)
----------------------------------------------------------------------------------------------------------------
SMITH, Jane............................            6          0.5   Hired full time at middle of fiscal year.
PUBLIC, John Q.........................            4           .34  Dedicated to full time FOIA processing last
                                                                     quarter of fiscal year.
BROWN, Tom.............................           12          1.0   Worked FOIA full time all fiscal year.
                                        ---------------------------
    Total..............................           22          1.84  ............................................
----------------------------------------------------------------------------------------------------------------

    (ii) Number of part time staff: Enter the number of personnel your 
agency had dedicated to working FOIA part time during the fiscal year. 
This will be expressed in work-years (manyears). For example: ``5.1, 
3.2, 1.0, 6.5, et al.'' A sample calculation follows:

----------------------------------------------------------------------------------------------------------------
                                            Number
                Employee                    (hours     Work-years                       Note
                                           worked)
----------------------------------------------------------------------------------------------------------------
PUBLIC, John Q.........................          200           .1   Amount of time devoted to part time FOIA
                                                                     processing before becoming full time FOIA
                                                                     processor in previous example.
WHITE, Sally...........................          400           .2   Processed FOIA's part time while working as
                                                                     paralegal in General Counsel's Office.
PETERS, Ron............................        1,000           .5   Part time employee dedicated to FOIA
                                                                     processing.
                                        ---------------------------
    Total: \1\ 1,600/2,000.............  ...........  ............  ............................................
----------------------------------------------------------------------------------------------------------------
\1\ Hours (hours worked in a year) equals 0.8 work-years.

    (iii) Estimated litigation cost: Report your best estimate of 
litigation costs for the FY. Include all direct and indirect expenses 
associated with FOIA litigation in U.S. District Courts, U.S. Circuit 
Courts of Appeals, and the U.S. Supreme Court.
    (iv) Total program cost: Report the total cost of FOIA program 
operation within your agency. Include your litigation costs in this 
total. While you do not have to report detailed cost information as in 
the past, you should be able to explain the technique by which you 
derived your agency's total cost figures if the need arises.
    (A) Before the close of each fiscal year, the Directorate for 
Freedom of Information and Security Review (DFOISR) will dispatch the 
latest OSD Composite Rate Chart for military personnel to DoD 
Components. This information may be used in computing military personnel 
costs.
    (B) DoD Components should compute their civilian personnel costs 
using rates from local Office of Personnel Management (OPM) Salary 
Tables and shall add 16% for benefits.
    (C) Data captured on DD Form 2086, Record of Freedom of Information 
(FOI) Processing Cost and DD Form 2086-1, Record of Freedom of 
Information (FOI) Processing Cost for Technical Data, shall be 
summarized and used in computing total costs.
    (D) An overhead rate of 25% shall be added to all calculated costs 
for supervision, space, and administrative support.
    (10) Item 10: Authentication. The official that approves the 
agency's report

[[Page 731]]

submission to DoD will sign and date; enter typed name and duty title; 
and provide both the agency's name and phone number for questions about 
the report.
    (c) Electronic publication. The consolidated DoD Annual FOIA Program 
Report will be made available to the public in either paper or 
electronic format.



                    Subpart H_Education and Training



Sec. 286.36  Responsibility and purpose.

    (a) Responsibility. The Head of each DoD Component is responsible 
for the establishment of educational and training programs on the 
provisions and requirements of this part. The educational programs 
should be targeted toward all members of the DoD Component, developing a 
general understanding and appreciation of the DoD FOIA Program; whereas, 
the training programs should be focused toward those personnel who are 
involved in the day-to-day processing of FOIA requests, and should 
provide a thorough understanding of the procedures outlined in this 
part.
    (b) Purpose. The purpose of the educational and training programs is 
to promote a positive attitude among DoD personnel and raise the level 
of understanding and appreciation of the DoD FOIA Program, thereby 
improving the interaction with members of the public and improving the 
public trust in the DoD.
    (c) Scope and principles. Each Component shall design its FOIA 
educational and training programs to fit the particular requirements of 
personnel dependent upon their degree of involvement in the 
implementation of this part. The program should be designed to 
accomplish the following objectives:
    (1) Familiarize personnel with the requirements of the FOIA and its 
implementation by this part.
    (2) Instruct personnel, who act in FOIA matters, concerning the 
provisions of this part, advising them of the legal hazards involved and 
the strict prohibition against arbitrary and capricious withholding of 
information.
    (3) Provide for the procedural and legal guidance and instruction, 
as may be required, in the discharge of the responsibilities of initial 
denial and appellate authorities.
    (4) Advise personnel of the penalties for noncompliance with the 
FOIA.
    (d) Implementation. To ensure uniformity of interpretation, all 
major educational and training programs concerning the implementation of 
this part should be coordinated with the Director, Freedom of 
Information and Security Review.
    (e) Uniformity of legal interpretation. In accordance with DoD 
Directive 5400.7, the DoD Office of the General Counsel shall ensure 
uniformity in the legal position and interpretation of the DoD FOIA 
Program.

 Appendix A to Part 286--Combatant Commands--Processing Procedures for 
                              FOIA Appeals

                             AP1.1. General

    AP1.1.1. In accordance with DoD Directive 5400.7 \1\ and this part, 
the Combatant Commands are placed under the jurisdiction of the Office 
of the Secretary of Defense, instead of the administering Military 
Department, only for the purpose of administering the Freedom of 
Information Act (FOIA ) Program. This policy represents an exception to 
the policies in DoD Directive 5100.3.\2\
---------------------------------------------------------------------------

    \1\ Copy may be viewed via internet at http://web7.whs.osd.mil/
corres.htm.
    \2\ See footnote 1 to paragraph AP1.1.1. of this appendix.
---------------------------------------------------------------------------

    AP1.1.2. The policy change in AP1.1.1. of this appendix authorizes 
and requires the Combatant Commands to process FOIA requests in 
accordance with DoD Directive 5400.7 and DoD Instruction 5400.10 \3\ and 
to forward directly to the Director, Freedom of Information and Security 
Review, all correspondence associated with the appeal of an initial 
denial for information under the provisions of the FOIA.
---------------------------------------------------------------------------

    \3\ See footnote 1 to paragraph AP1.1.1. of this appendix.
---------------------------------------------------------------------------

                   AP1.2. Responsibilities of Commands

    Combatant Commanders in Chief shall:
    AP1.2.1. Designate the officials authorized to deny initial FOIA 
requests for records.
    AP1.2.2. Designate an office as the point-of-contact for FOIA 
matters.
    AP1.2.3. Refer FOIA cases to the Director, Freedom of Information 
and Security Review, for review and evaluation when the issues raised 
are of unusual significance, precedent setting, or otherwise require 
special attention or guidance.

[[Page 732]]

    AP1.2.4. Consult with other OSD and DoD Components that may have a 
significant interest in the requested record prior to a final 
determination. Coordination with Agencies outside of the Department of 
Defense, if required, is authorized.
    AP1.2.5. Coordinate proposed denials of records with the appropriate 
Combatant Command's Office of the Staff Judge Advocate.
    AP1.2.6. Answer any request for a record within 20 working days of 
receipt. The requesters shall be notified that his request has been 
granted or denied. In unusual circumstances, such notification may state 
that additional time, not to exceed 10 working days, is required to make 
a determination.
    AP1.2.7. Provide to the Director, Freedom of Information and 
Security Review when the request for a record is denied in whole or in 
part, a copy of the response to the requester or the requester's 
representative, and any internal memoranda that provide background 
information or rationale for the denial.
    AP1.2.8. State in the response that the decision to deny the release 
of the requested information, in whole or in part, may be appealed to 
the Director, Administration and Management and Washington Headquarters 
Services, Directorate for Freedom of Information and Security Review, 
Room 2C757, 1155 Defense Pentagon, Washington, DC 20301-1155.
    AP1.2.9. Upon request, submit to Director, Administration and 
Management and Washington Headquarters Services a copy of the records 
that were denied. The Director, Administration and Management and 
Washington Headquarters Services shall make such requests when 
adjudicating appeals.

                      AP1.3. Fees for FOIA Requests

    The fees charged for requested records shall be in accordance with 
subpart F of this part.

                          AP1.4. Communications

    Excellent communication capabilities currently exist between the 
Director, Freedom of Information and Security Review and the Freedom of 
Information Act Offices of the Combatant Commands. This communication 
capability shall be used for FOIA cases that are time sensitive.

                     AP1.5. Information Requirements

    AP1.5.1. The Combatant Commands shall submit to the Director, 
Freedom of Information and Security Review, an annual report. The 
instructions for the report are outlined in subpart G of this part.
    AP1.5.2. The annual reporting requirement contained in this part 
shall be submitted in duplicate to the Director, Freedom of Information 
and Security Review not later than each November 30. This reporting 
requirement has been assigned Report Control Symbol DD-DA&M(A) 1365 in 
accordance with DoD 8910.1-M.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to paragraph AP1.1.1. of this appendix.
---------------------------------------------------------------------------

            Appendix B to Part 286--Addressing FOIA Requests

                             AP2.1. General

    AP2.1.1. The Department of Defense includes the Office of the 
Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the 
Military Departments, the Combatant Commands, the Inspector General, the 
Defense Agencies, and the DoD Field Activities.
    AP2.1.2. The Department of Defense does not have a central 
repository for DoD records. FOIA requests, therefore, should be 
addressed to the DoD Component that has custody of the record desired. 
In answering inquiries regarding FOIA requests, DoD personnel shall 
assist requesters in determining the correct DoD Component to address 
their requests. If there is uncertainty as to the ownership of the 
record desired, the requester shall be referred to the DoD Component 
that is most likely to have the record.

       AP2.2. Listing of DoD Component Addresses for FOIA Requests

    AP2.2.1. Office of the Secretary of Defense and the Chairman of the 
Joint Chiefs of Staff. Send all requests for records from the below 
listed offices to: Directorate for Freedom of Information and Security 
Review, Room 2C757, 1155 Defense Pentagon, Washington, DC 20301-1155.

Executive Secretariat
Under Secretary of Defense (Policy)
Assistant Secretary of Defense (International Security Affairs)
Assistant Secretary of Defense (Special Operations & Low Intensity 
Conflict)
Assistant Secretary of Defense (Strategy & Threat Reduction)
Deputy to the Under Secretary of Defense (Policy Support)
Director of Net Assessment
Defense Security Assistance Agency
Defense Technology Security Administration
Under Secretary of Defense (Acquisition & Technology)
Deputy Under Secretary of Defense (Logistics)
Deputy Under Secretary of Defense (Advanced Technology)
Deputy Under Secretary of Defense (Acquisition Reform)
Deputy Under Secretary of Defense (Environmental Security)

[[Page 733]]

Deputy Under Secretary of Defense (International & Commercial Programs)
Deputy Under Secretary of Defense (Industrial Affairs & Installations)
Assistant to the Secretary of Defense (Nuclear, Chemical & Biological 
Defense Programs)
Director, Defense Research & Engineering
Director, Small & Disadvantaged Business Utilization
Director, Defense Procurement
Director, Test Systems Engineering & Evaluation
Director, Strategic & Tactical Systems
DoD Radiation Experiments Command Center
On-Site Inspection Agency
Under Secretary of Defense (Comptroller)
Director, Program Analysis and Evaluation
Under Secretary of Defense (Personnel & Readiness)
Assistant Secretary of Defense (Health Affairs)
Assistant Secretary of Defense (Legislative Affairs)
Assistant Secretary of Defense (Public Affairs)
Assistant Secretary of Defense (Command, Control, Communications & 
Intelligence)
Assistant Secretary of Defense (Reserve Affairs)
General Counsel, Department of Defense
Director, Operational Test and Evaluation
Assistant to the Secretary of Defense (Intelligence Oversight)
Director, Administration and Management
Special Assistant for Gulf War Illness
Defense Advanced Research Projects Agency
Ballistic Missile Defense Organization
Defense Systems Management College
National Defense University
Armed Forces Staff College
Department of Defense Dependents Schools
Uniformed Services University of the Health Sciences
Armed Forces Radiology Research Institute
Washington Headquarters Services

    AP2.2.2. Department of the Army. Army records may be requested from 
those Army officials who are listed in 32 CFR 518. Send requests to the 
Department of the Army, Freedom of Information and Privacy Acts Office, 
TAPC-PDR-PF, 7798 Cissna Road, Suite 205, Springfield, VA 22150-3166, 
for records of the Headquarters, U.S. Army, or if there is uncertainty 
as to which Army activity may have the records.
    AP2.2.3. Department of the Navy. Navy and Marine Corps records may 
be requested from any Navy or Marine Corps activity by addressing a 
letter to the Commanding Officer and clearly indicating that it is a 
FOIA request. Send requests to Chief of Naval Operations, N09B30, 2000 
Navy Pentagon, Washington, DC 20350-2000, for records of the 
Headquarters, Department of the Navy, and to Commandant of the Marine 
Corps, (ARAD), Headquarters U.S. Marine Corps, 2 Navy Annex, Washington, 
DC 20380-1775 for records of the U.S. Marine Corps, or it there is 
uncertainty as to which Navy or Marine activities may have the records.
    AP2.2.4. Department of the Air Force. Air Force records may be 
requested from the commander of any Air Force installation, major 
command, or field operating agency (ATTN: FOIA Office). For Air Force 
records of Headquarters, United States Air Force, or it there is 
uncertainty as to which Air Force activity may have the records, send 
requests to Department of the Air Force, 11CS/SCSR(FOIA), 1000 Air Force 
Pentagon, Washington, DC 20330-1000.
    AP2.2.5. Defense Contract Audit Agency (DCAA). DCAA records may be 
requested from any of its regional offices or from its Headquarters. 
Requesters should send FOIA requests to the Defense Contract Audit 
Agency, ATTN: CMR, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, 
VA 22060-6219, for records of its headquarters or if there is 
uncertainty as to which DCAA region may have the records sought.
    AP2.2.6. Defense Information Systems Agency (DISA). DISA records may 
be requested from any DISA field activity or from its Headquarters. 
Requesters should send FOIA requests to Defense Information Systems 
Agency, Regulatory/General Counsel, 701 South Courthouse Road, 
Arlington, VA 22204-2199.
    AP2.2.7. Defense Intelligence Agency (DIA). FOIA requests for DIA 
records may be addressed to Defense Intelligence Agency, ATTN: SVI-1, 
Washington, DC 20340-5100.
    AP2.2.8. Defense Security Service (DSS). All FOIA requests for DSS 
records should be sent to the Defense Security Service, Office of FOIA 
and Privacy V0020, 1340 Braddock Place, Alexandria, VA 22314-1651.
    AP2.2.9. Defense Logistics Agency (DLA). DLA records may be 
requested from its headquarters or from any of its field activities. 
Requesters should send FOIA requests to Defense Logistics Agency, ATTN: 
CAAR, 8725 John J. Kingman Road, Suite 2533, Ft. Belvoir, VA 22060-6221.
    AP2.2.10. National Imagery and Mapping Agency (NIMA). FOIA requests 
for NIMA records may be sent to the National Imagery and Mapping Agency, 
General Counsels Office, GCM, mail Stop D-10, 4600 Sangamore Road, 
Bethesda, MD 20816-5003.
    AP2.2.11. Defense Special Weapons Agency (DSWA). FOIA requests for 
DSWA records may be sent to the Defense Special Weapons Agency, Public 
Affairs Office, Room 113, 6801 Telegraph Road, Alexandria, VA 22310-
3398.
    AP2.2.12. National Security Agency (NSA). FOIA requests for NSA 
records may be sent to the National Security Agency/Central Security 
Service, FOIA/PA Services, N5P5, 9800 Savage Road, Suite 6248, Fort 
George G. Meade, MD 20755-6248.

[[Page 734]]

    AP2.2.13. Inspector General of the Department of Defense (IG, DoD). 
FOIA requests for IG, DoD records may be sent to the Inspector General 
of the Department of Defense, Chief FOIA/PA Office, 400 Army Navy Drive, 
Room 405, Arlington, VA 22202-2884.
    AP2.2.14. Defense Finance and Accounting Service (DFAS). DFAS 
records may be requested from any of its regional offices or from its 
Headquarters. Requesters should send FOIA requests to Defense Finance 
and Accounting Service, Directorate for External Services, Crystal Mall 
3, Room 416, Arlington, VA 22240-5291, for records of its Headquarters, 
or if there is uncertainty as to which DFAS region may have the records 
sought.
    AP2.2.15. National Reconnaissance Office (NRO). FOIA requests for 
NRO records may be sent to the National Reconnaissance Office, 
Information Access and Release Center, Attn: FOIA Officer, 14675 Lee 
Road, Chantilly, VA 20151-1715.
    AP2.3. Other Addresses. Although the below organizations are OSD and 
Chairman of the Joint Chiefs of Staff Components for the purposes of the 
FOIA, requests may be sent directly to the addresses indicated.
    AP2.3.1. DoD TRICARE Management Activity. Director, TRICARE 
Management Activity, 16401 East Centretech Parkway, Aurora, CO 80011-
9043.
    AP2.3.2. Chairman, Armed Services Board of Contract Appeals (ASBCA). 
Chairman, Armed Services Board of Contract Appeals, Skyline Six Rm 703, 
5109 Leesburg Pike, Falls Church, VA 22041-3208.
    AP2.3.3. U.S. Central Command. Commander-in-Chief, U.S. Central 
Command, CCJ1 AGR, MacDill Air Force Base, FL 33608-7001.
    AP2.3.4. U.S. European Command. Commander-in-Chief, Headquarters, 
U.S. European Command/ECJ1-AA(FOIA) Unit 30400 Box 1000, APO AE 09128-
4209.
    AP2.3.5. U.S. Southern Command. Commander-in-Chief, U.S. Southern 
Command, SCJ1-A, 3511 NW 91st Avenue, Miami, FL 33172-1217.
    AP2.3.6. U.S. Pacific Command. Commander-in-Chief, U.S. Pacific 
Command, USPACOM FOIA Coordinator (J042), Administrative Support 
Division, Joint Secretariat, Box 28, Camp H. M. Smith, HI 96861-5025.
    AP2.3.7. U.S. Special Operations Command. Commander-in-Chief, U.S. 
Special Operations Command, Chief, Command Information Management 
Branch, ATTN: SOJ6-SI, 7701 Tampa Point Blvd., MacDill Air Force Base, 
FL 33621-5323.
    AP2.3.8. U.S. Atlantic Command. Commander-in-Chief, U.S. Atlantic 
Command, Code J02P, Norfolk, VA 23511-5100.
    AP2.3.9. U.S. Space Command. Commander-in-Chief, U.S. Space Command, 
Command Records Manager/FOIA/PA Officer, 150 Vandenberg Street, Suite 
1105, Peterson Air Force Base, CO 80914-5400.
    AP2.3.10. U.S. Transportation Command. Commander-in-Chief, U.S. 
Transportation Command, ATTN: TCJ1-1F, 508 Scott Drive, Scott Air Force 
Base, IL 62225-5357.
    AP2.3.11. U.S. Strategic Command. Commander-in-Chief, U.S. Strategic 
Command, Attn: J0734, 901 SAC Blvd., Suite 1E5, Offutt Air Force Base, 
NE 68113-6073.

                      AP2.4. National Guard Bureau

    FOIA requests for National Guard Bureau records may be sent to the 
Chief, National Guard Bureau, ATTN: NGB-ADM, Room 2C363, 2500 Army 
Pentagon, Washington, DC 20310-2500.

                          AP2.5. Miscellaneous

    If there is uncertainty as to which DoD Component may have the DoD 
record sought, the requester may address a Freedom of Information 
request to the Directorate for Freedom of Information and Security 
Review, Room 2C757, 1155 Defense Pentagon, Washington, DC 20301-1155.

[[Page 735]]

Appendix C to Part 286--DD Form 2086, ``Record of Freedom of Information 
                         (FOI) Processing Cost''
[GRAPHIC] [TIFF OMITTED] TR25NO98.000


[[Page 736]]


[GRAPHIC] [TIFF OMITTED] TR25NO98.001


[[Page 737]]



     Appendix D to Part 286--DD Form 2086-1, ``Record of Freedom of 
         Information (FOI) Processing Cost for Technical Data''
[GRAPHIC] [TIFF OMITTED] TR25NO98.002


[[Page 738]]


[GRAPHIC] [TIFF OMITTED] TR25NO98.003


[[Page 739]]



    Appendix E to Part 286--DD Form 2564, ``Annual Report Freedom of 
                            Information Act''
[GRAPHIC] [TIFF OMITTED] TR25NO98.004


[[Page 740]]


[GRAPHIC] [TIFF OMITTED] TR25NO98.005

     Appendix F to Part 286--DoD Freedom of Information Act Program 
                               Components

Office of the Secretary of Defense/Chairman of the Joint Chiefs of 
Staff/Combatant Commands, Defense Agencies, and the DoD Field Activities
Department of the Army
Department of the Navy
Department of the Air Force
Defense Information Systems Agency
Defense Contract Audit Agency

[[Page 741]]

Defense Intelligence Agency
Defense Security Service
Defense Logistics Agency
National Imagery and Mapping Agency
Defense Special Weapons Agency
National Security Agency
Office of the Inspector General, Department of Defense
Defense Finance and Accounting Service
National Reconnaissance Office



PART 286h_RELEASE OF ACQUISITION-RELATED INFORMATION--Table of Contents




Sec.
286h.1 Purpose.
286h.2 Applicability and scope.
286h.3 Policy.
286h.4 Responsibilities.

    Authority: Pub. L. 101-189.

    Source: 55 FR 28614, July 12, 1990, unless otherwise noted.



Sec. 286h.1  Purpose.

    This part sets forth Department of Defense (DoD) policy for the 
release of acquisition-related information.



Sec. 286h.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Chairman, Joint Chiefs of Staff and 
Joint Staff (CJCS), the Unified and Specified Commands, and the Defense 
Agencies (hereafter referred to collectively as ``DoD Components'').
    (b) This part is issued pursuant to section 822 of Public Law 101-
189, which requires the Department of Defense to prescribe a single 
uniform regulation for dissemination of, and access to, acquisition 
information.



Sec. 286h.3  Policy.

    (a) General. It is the Department of Defense's policy to make the 
maximum amount of acquisition-related information available to the 
public, and to respond promptly to specific requests from the public for 
such information, except for the information identified in paragraph (b) 
of this section, for which release is restricted.
    (b) Information for which release is restricted. The information 
identified below may be released only as set forth herein.
    (1) Release subject to statutory restrictions. This information may 
be released only in accordance with the applicable statutory 
requirements. Once the statutory requirements have been satisfied, the 
information may be released unless it falls within one of the categories 
described in the following paragraphs, in which case the policies 
governing release of information within those categories shall be 
followed.
    (2) Classified information. (i) Any information or material, 
regardless of its physical form or characteristics, that is owned by, 
produced by or for, or under the control of the United States 
Government, and which, for national security purposes, must be protected 
against unauthorized disclosure and is so designated or marked with the 
appropriate classification.
    (ii) Release, access, and dissemination of classified information 
shall be made through existing security channels in accordance with DoD 
5220.22-R;\1\ DoD 5220.22-M;\2\ and DoD 5200.1-R,\3\ which are 
implementing publications for safeguarding classified information 
release, access, and dissemination to United States and foreign 
concerns.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Services, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ Copies may be obtained, at cost, from the Government Printing 
Office, ATTN: Superintendent of Documents, Washington, DC 20402.
    \3\ See footnote 1 to Sec. 286h.3(b)(2)(ii).
---------------------------------------------------------------------------

    (3) Contractor bid or proposal information. (i) This is information 
prepared by or on behalf of an offeror and submitted to the Government 
as a part of or in support of the offeror's bid or proposal to enter 
into a contract with the Government, the disclosure of which would place 
the offeror at a competitive disadvantage or jeopardize the integrity or 
the successful completion of the procurement. Contractor bid or proposal 
information includes cost or pricing data, profit data, overhead and 
direct labor rates, and manufacturing processes and techniques. 
Contractor bid or proposal information does not include information that 
is available to the public.
    (ii)(A) Sealed bids. (1) Prior to bid opening, no release or 
disclosure of contractor bid information shall be made to anyone other 
than those who are involved in the evaluation of the

[[Page 742]]

bids or to other individuals authorized by the Head of the DoD 
Component, or his or her designee.
    (2) After contract award, contractor bid information may be released 
or disclosed by those authorized by the Head of the DoD Component, or 
his or her designee, to make such release or disclosure, if the 
information to be released or disclosed is not subject to a restrictive 
legend authorized by Federal Acquisition Regulation (FAR) 52.215-12 or 
release is not otherwise restricted by law.
    (3) Negotiated procurements. Prior to contract award, no release or 
disclosure of contractor proposal information shall be made to anyone 
other than those who are involved in the evaluation of the proposals or 
the source selection or to other individuals authorized by the Head of 
the DoD Component, or his or her designee. DoD Components shall adopt 
procedures in accordance with FAR 15.413 to protect against release or 
disclosure of contractor proposal information. After contract award, 
contractor proposal information may be released or disclosed by those 
authorized by the Head of the DoD Component, or his or her designee, to 
make such release or disclosure, if the information to be released or 
disclosed is not subject to a restrictive legend authorized by FAR 
15.509 or FAR 52.215-12 or release is not otherwise restricted by law.
    (4) Source selection information. (i) This is information prepared 
or developed for use by the Government in connection with the selection 
of a bid or proposal for the award of a contract. Only the following 
information, including copies or extracts thereof, is source selection 
information:
    (A) Bid prices submitted in response to a Government solicitation 
for sealed bids or lists of such bid prices (applicable prior to bid 
opening only);
    (B) Proposed costs or prices submitted in response to a Government 
solicitation prior to award of the contract, a list of proposed costs or 
prices;
    (C) Source selection plans;
    (D) Technical evaluation plans;
    (E) Technical evaluations of competing proposals;
    (F) Cost or price evaluations of competing proposals;
    (G) Competitive range determinations;
    (H) Rankings of competitors;
    (I) The reports and evaluations or source selection boards, advisory 
councils, or the source selection authority (SSA); and
    (J) Any other information which:
    (1) If disclosed, would give an offeror a competitive advantage or 
jeopardize the integrity or successful completion of the procurement; 
and
    (2) Is marked with the legend ``Source Selection Information.''
    (ii) Release of or access to source selection information (SSI)--(A) 
Access to SSI. The SSA (including the contracting officer when the 
contracting officer is the SSA) shall restrict access to source 
selection information to only those Government employees directly 
involved in the source selection process or to those individuals who 
have been authorized by the Head of the DoD Component, or his or her 
designee, to have access to such information. If the contracting officer 
or the SSA have not been appointed, the Head of the DoD Component, or 
his or her designee, shall assure access to such information is properly 
restricted. Employees supervising or managing employees directly 
involved in the source selection process are not themselves by virtue of 
their positions directly involved in the source selection process.
    (B) Release of SSI--(1) Prior to contract award. Source selection 
information shall not be released prior to contract award unless the 
Head of the DoD Component, or his or her designee, determines that 
release is in the public interest and would not jeopardize the integrity 
or successful completion of the procurement. The information to be 
released shall only be released by the contracting officer. The 
contracting officer shall make release in a manner that does not provide 
any potential offeror with a competitive advantage.
    (2) After contract award. The need to protect source selection 
information generally ends with contract award. The contracting officer 
may release, or authorize the release of, any source selection 
information related to that contract award except: Source selection 
information specifically developed or prepared for use with more than 
one

[[Page 743]]

solicitation when there is a continuing need to protect that 
information; unless otherwise permitted by law, source selection 
information containing contractor data or extracts thereof which are 
protected by law; information which would reveal the relative merits or 
technical standing of the competitors or the evaluation scoring; and any 
pre-decisional or other information not subject to release under the 
Freedom of Information Act. Debriefings to unsuccessful offerors shall 
be conducted in accordance with FAR 15.1003 and Defense Federal 
Acquisition Regulation Supplement (DFARS) 215.1003(a).
    (5) Planning, programming, and budgetary information. (i) Planning, 
Programming, and Budgeting System (PPBS) documents and supporting data 
bases are not to be disclosed outside the Department of Defense (DoD) 
and other governmental agencies directly involved in the defense 
planning and resource allocation process (e.g., the Office of Management 
and Budget). PPBS papers and associated data set forth the details of 
proposed programs and plans. Access to this material by those not 
directly involved in the PPBS process undermines the confidentiality 
necessary for the Secretary and Deputy Secretary to obtain candid advice 
on the content of the defense program. Also, access to PPBS information 
by private firms seeking contracts with the Department may pose ethical, 
even criminal, problems for those involved and reduce effective 
competition in the contract awards process.
    (ii)(A) Requests for exceptions to this limitation may be granted on 
a case-by-case basis to meet compelling needs, after coordination with 
the Office of General Counsel, by the Head of the OSD office responsible 
for the PPBS phase to which the document or data base pertains; the 
Under Secretary of Defense (Policy) for the planning phase; the 
Assistant Secretary of Defense (Program Analysis and Evaluation) for 
programming; and the Comptroller, DoD for budgeting. A list of the 
current major documents and data bases for each PPBS phase is in 
paragraph (B)(5)(11)(C) of this section; all other PPBS materials are 
also controlled under this policy.
    (B) Disclosure of PPBS information to Congress and the General 
Accounting Office (GAO) is covered by statute and other procedures.
    (C) Major PPBS Documents and Data Bases by Phase.

                             Planning Phase

    (1) Defense Planning Guidance.

                            Programming Phase

    (2) Fiscal Guidance (when separate from Defense Planning Guidance);
    (3) Program Objective Memoranda (POM);
    (4) POM Defense Program (formerly FYDP) documents (POM Defense 
Program, Procurement Annex, RDT&E Annex);
    (5) Program Review Proposals;
    (6) Issue Papers (aka, Major Issue Papers, Tier II Issue Papers, 
Cover Briefs);
    (7) Proposed Military Department Program Reductions (or Program 
Offsets);
    (8) Tentative Issue Decision Memoranda;
    (9) Program Decision Memoranda;

                             Budgeting Phase

    (10) Defense Program (formerly FYDP) documents for September and 
President's Budget Estimate submissions including Defense Program 
Procurement, RDT&E and Construction Annexes;
    (11) Classified P-1, R-1 and C-1;
    (12) Program Budget Decisions/Defense Management Review Decisions;
    (13) Reports Generated by the Automated Budget Review System (BRS);
    (14) DD Form 1414 Base for Programming;
    (15) DD Form 1416 Report of Programs;
    (16) Contract Award Reports;
    (17) Congressional Data Sheets.
    (iii) Contractor requests for information contained in the National 
Military Strategy Document (including annexes) and the Chairman's 
Program Assessment Document (including annexes and comments) shall be 
forwarded to the CJCS who shall determine on a case-by-case basis what 
information, if any, is releasable to the contractor.

[[Page 744]]

    (6) Documents that disclose the Government's negotiating position. 
Documents that would disclose the government's negotiating position 
(such as pre-negotiation business clearances and positions and 
government cost estimates) or would adversely impact the government 
negotiating strategy shall not be released.
    (7) Drafts and working papers. Drafts and working papers that would 
otherwise be releasable under paragraph 286h.3(a) shall not be released 
where their release would inhibit the development of agency positions, 
jeopardize the free exchange of information that is part of the 
deliberative process, or compromise the decision-making process.
    (c) Freedom of Information Act. Where a request for information, the 
release of which is restricted under paragraph 286h.3(b) is made under 
the Freedom of Information Act, the request shall be forwarded to the 
appropriate official for disposition in accordance with DoD 5400.7-R.\4\ 
Requests for contractor bid or proposal information pursuant to the 
Freedom of Information Act shall be subject to subparagraph 5-207 a. of 
DoD 5400.7-R, which requires notice to a non-United States Government 
source of a record.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 286h.3(b)(2)(ii).
---------------------------------------------------------------------------



Sec. 286h.4  Responsibilities.

    (a) The Under Secretary of Defense (Acquisition) shall be 
responsible for establishing uniform policies and procedures for the 
release of acquisition-related information.
    (b) The Under Secretary of Defense (Policy), Assistant Secretary of 
Defense (Program Analysis and Evaluation) and Comptroller, DoD are 
responsible for adjudicating requests for access to Planning, 
Programming and Budgeting information pertaining to their respective 
phases of the PPB system.
    (c) The Head of each DoD Component shall assure that procedures for 
the release of acquisition-related information are consistent with the 
policy contained in this Directive and shall not impose any additional 
restrictions on release of such information. These procedures shall 
specifically identify the individuals authorized to release and transmit 
acquisition-related information.



PART 287_DEFENSE INFORMATION SYSTEMS AGENCY FREEDOM OF INFORMATION ACT 
PROGRAM--Table of Contents




Sec.
287.1 Purpose.
287.2 Applicability.
287.3 Authority.
287.4 Duties of the FOIA Officer.
287.5 Responsibilities.
287.6 Duties of the DITCO and the DTIC FOIA Officers.
287.7 Fees.
287.8 Appeal rights.
287.9 Reports.
287.10 Questions.
287.11 ``For Official Use Only'' Records.

    Authority: 5 U.S.C. 552.

    Source: 64 FR 67166, Dec. 1, 1999, unless otherwise noted.



Sec. 287.1  Purpose.

    This part assigns responsibilities for the Freedom of Information 
Act (FOIA) Program for DISA.



Sec. 287.2  Applicability.

    This part applies to DISA and the Office of the Manager, National 
Communications System (OMNCS).



Sec. 287.3  Authority.

    This part is published in accordance with (IAW) the authority 
contained in 32 CFR part 286. It supplements 32 CFR part 286 to 
accommodate specific requirements of the DISA FOIA Program. However, 32 
CFR part 286 takes precedence and shall be used for all issues not 
covered by this part.



Sec. 287.4  Duties of the FOIA officer.

    The DISA FOIA Officer, located at DISA Headquarters, 701 S. 
Courthouse Road, Arlington, Virginia, is vested with the authority, 
within DISA, to release documentation for all requests of Agency records 
received by DISA directorates and field activities. The DISA FOIA 
Officer will:
    (a) Make the materials described in 32 CFR 286.7 available for 
public inspection and reproduction. (A current index of this material 
will be maintained in accordance with 32 CFR 286.8).

[[Page 745]]

    (b) Establish education and training programs for all DISA employees 
who contribute to the DISA FOIA Program.
    (c) Respond to all requests for records from private persons IAW 32 
CFR part 286 whether the requests are received directly by DISA 
Headquarters or by DISA field activities. Coordinate proposed releases 
with the General Counsel in any case in which the release is, or may be, 
controversial. Coordinate all proposed denials with the General Counsel.
    (d) Be the DISA principal point of contact for coordination with the 
Directorate for Freedom of Information and Security Review (DFOISR) 
Washington Headquarters Services, reference FOIA issues.
    (e) Ensure the cooperation of DISA with DFOISR in fulfilling the 
responsibilities of monitoring the FOIA Program.
    (f) Coordinate cases of significance with DFOISR, after coordination 
with the General Counsel and with the approval of the Chief of Staff, 
when the issues raised are unusual, precedent setting, or otherwise 
require special attention or guidance.
    (g) Advise DFOISR prior to the denial of a request or prior to an 
appeal when two or more DoD components are affected by the request for a 
particular record or when circumstances suggest a potential public 
controversy.
    (h) Ensure completion of the annual reporting requirement contained 
in 32 CFR part 286.



Sec. 287.5  Responsibilities

    (a) Deputy Directors, Headquarters, DISA; Commanders and Chiefs of 
DISA Field Activities; and the Deputy Manager, NCS. These individuals 
will furnish the FOIA Officer, when requested, with DISA documentary 
material, which qualifies as a record IAW 32 CFR part 286, for the 
purpose of responding to FOIA requests.
    (b) Chief of Staff. The Chief of Staff will, on behalf of the 
Director, DISA, respond to the corrective or disciplinary action 
recommended by the Merit Systems Protection Board for arbitrary or 
capricious withholding of records requested, pursuant to the Freedom of 
Information Act, by military members or civilian employees of DISA. 
(This will be coordinated with the General Counsel.)
    (c) General Counsel. The General Counsel or, in his or her absence, 
the Deputy General Counsel, is vested with the authority to deny, in 
whole or in part, a FOIA request received by DISA. The General Counsel 
will:
    (1) Make the decision to deny a record in whole or in part; to deny 
a fee category claim; to deny a request for waiver or reduction in fees; 
to deny a request to review an initial fee estimate; to deny a request 
for expedited processing; or to confirm that no records were located 
during the initial search IAW 5 U.S.C. 552, as supplemented by the 
guidance provided in 32 CFR part 286
    (2) Inform the person denied the basis for the denial of the request 
and of his or her right to appeal the decision to the Director, DISA, 
via written correspondence.
    (3) Review any appeal the public may consider adverse in nature and 
ensure that the basis for the determination by the Director, DISA, be in 
writing, state the reasons for the denial, and inform the requester of 
his or her right to a judicial review in the appropriate U.S. District 
Court.
    (4) Arrange for the publication of this part in the Federal 
Register.
    (d) Chief, Legal Counsel, Defense Information Technology Contracting 
Organization (DITCO). The Chief Legal Counsel, DITCO, or, in his or her 
absence, the Deputy Legal Counsel, DITCO, is vested with same authority 
and responsibilities, for DITCO, as stated in paragraph (c) of this 
section.
    (e) Administrator, Defense Technical Information Center (DTIC). The 
Administrator, DTIC, is vested with the same authority and 
responsibilities, for DTIC, as stated in paragraph (c) of this section.



Sec. 287.6  Duties of the DITCO and the DTIC FOIA officers.

    (a) DITCO FOIA Officer. The DITCO FOIA Officer, located at 2300 East 
Drive, Scott AFB, IL 62225, is vested with the authority, within DITCO, 
to release documentation for all requests of records received by DITCO 
and its field activities, as stated in Sec. 287.4 (a), (b), and (c) and 
assist the DISA FOIA

[[Page 746]]

officer in carrying out the duties stated in Sec. 287.4 (d) and (h).
    (b) DTIC FOIA Officer. The DTIC FOIA Officer, located at 8725 John 
J. Kingman Road, Suite 0944, Ft. Belvoir, VA 22060, is vested with the 
authority, within DTIC, to release documentation for all requests of 
records within DTIC, as stated in Sec. 287.4 (a), (b), and (c) and 
assist the DISA FOIA officer in carrying out the duties stated in Sec. 
287.4 (d) and (h).



Sec. 287.7  Fees.

    Fees charged to the requester are contained in 32 CFR part 286.



Sec. 287.8  Appeal rights.

    All appeals should be addressed to the Director, DISA, and be 
postmarked no later than 60 days after the date of the initial denial 
letter.



Sec. 287.9  Reports.

    An annual report will be furnished to the FOIA Officer by the field 
activities by 15 October IAW 32 CFR part 286.



Sec. 287.10  Questions.

    Questions on both the substance and procedures of the FOIA and the 
DISA implementation thereof should be addressed to the FOIA Officer by 
the most expeditious means possible, including telephone calls, faxes, 
and electronic mail. FOIA requests should be addressed as follows: 
Defense Information Systems Agency, 701 S. Courthouse Road, Arlington, 
VA 22204-2199, Attn: RGC. Calls should be made to (703) 607-6515. Faxed 
requests should be addressed to the FOIA Officer at (703) 607-4344. 
Electronic mail requests should be addressed to [email protected].



Sec. 287.11  ``For Official Use Only'' Records.

    The designation ``For Official Use Only'' will be applied to 
documents and other material only as authorized by 32 CFR part 286 and 
DoD 5200.1-R.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained via Internet at http://web7.whs.osd.mil/
corres.htm.
---------------------------------------------------------------------------



PART 290_DEFENSE CONTRACT AUDIT AGENCY (DCAA) FREEDOM OF INFORMATION 
ACT PROGRAM--Table of Contents




Sec.
290.1 Purpose.
290.2 Cancellation.
290.3 Applicability and scope.
290.4 Policy.
290.5 Definitions.
290.6 Responsibilities.
290.7 Procedures.
290.8 Fees.

Appendix A to Part 290--DCAA's Organization and Mission
Appendix B to Part 290--DCAA's FOIA Points of Contact
Appendix C to Part 290--For Official Use Only
Appendix D to Part 290--Audit Working Papers

    Authority: 5 U.S.C. 552.

    Source: 56 FR 49685, Oct. 1, 1991, unless otherwise noted.



Sec. 290.1  Purpose.

    This part assigns responsibilities and establishes policies and 
procedures for a uniform DCAA Freedom of Information Act (FOIA) program 
pursuant to the provisions of the Freedom of Information Act, 5 U.S.C. 
552, as implemented by DoD Directive 5400.7 \1\ and DoD 5400.7-R.\2\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 290.1.
---------------------------------------------------------------------------



Sec. 290.2  Cancellation.

    DCAA Regulation 5410.8, DCAA Freedom of Information Act (FOIA) 
Program, dated 17 May 1989; DCAAR 5200.1, Control and Protection of 
``For Official Use Only'' Information, dated 12 November 1985; and DCAA 
HQ Instruction 5200.9, Physical Security of ``For Official Use Only'' 
Information within Headquarters, DCAA, dated 20 November 1974, are 
superseded.



Sec. 290.3  Applicability and scope.

    This rule applies to all DCAA organizational elements, and is to 
govern written responses by DCAA officials for requests from members of 
the public for permission to examine, or to be provided with copies of 
DCAA records.

[[Page 747]]

This rule also addresses Agency policies and procedures for handling 
``For Official Use Only'' information, including Field Detachment 
sensitive information.



Sec. 290.4  Policy.

    Agency policy and procedures are those cited in DoD 5400.7-R. In 
addition, DCAA will:
    (a) Promote public trust by making the maximum amount of information 
available to the public, upon request, pertaining to the operation and 
activities of the Agency.
    (b) Allow a requester to obtain records from the Agency that are 
available through other public information services without invoking the 
FOIA.
    (c) Make available, under the procedures established by DCAAP 
5410.14,\3\ those records that are requested by a member of the general 
public who cites the FOIA.
---------------------------------------------------------------------------

    \3\ Copies may be obtained from the Defense Contract Audit Agency, 
Attn: CMO, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 
22060-6219.
---------------------------------------------------------------------------

    (d) Answer promptly all other requests for information and records 
under established procedures and practices.

[56 FR 49685, Oct. 1, 1991, as amended at 60 FR 35699, July 11, 1995; 64 
FR 1130, Jan. 8, 1999]



Sec. 290.5  Definitions.

    The terms used in this rule with the exception of the following are 
defined in DCAAP 5410.14.
    (a) Initial denial authorities (IDAs). The regional directors, and 
the Chief, Administrative Management Division, have been delegated the 
authority by the Director, DCAA, to make initial determinations as to 
the releasability of DCAA records to the public, including Defense 
contractors. This authority may not be redelegated.
    (b) Appellate authority. The Assistant Director, Resources, or his 
designee.
    (c) Electronic data. Electronic data are those records and 
information which are created, stored, and retrievable by electronic 
means. This does not include computer software, which is the tool by 
which to create, store, or retrieve electronic data.
    (d) FOIA request. A written request for DCAA records, made by any 
person, including a member of the public (U.S. or foreign citizen), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law that either explicitly or implicitly invokes the 
FOIA, DoD 5400.7-R, DCAAR 5410.8,\4\ or regional instruction on the 
FOIA.
---------------------------------------------------------------------------

    \4\ See footnote 3 to Sec. 290.4(c).
---------------------------------------------------------------------------

    (e) Administrative appeal. A request by a member of the general 
public, made under the FOIA, asking the appellate authority to reverse 
an IDA decision to withhold all or part of a requested record or to deny 
a request for waiver or reduction of fees.

[56 FR 49685, Oct. 1, 1991, as amended at 64 FR 1130, Jan. 8, 1999]



Sec. 290.6  Responsibilities.

    (a) Headquarters. (1) The Assistant Director, Resources is 
responsible for:
    (i) The overall Agency-wide administration of the DCAA FOIA Program 
through the Chief, Administrative Management Division, Information and 
Privacy Advisor, to ensure compliance with the policies and procedures 
that govern the program.
    (ii) Acting as the designee for the Director, DCAA, serving as the 
sole appellate authority for appeals to decisions of respective IDAs.
    (iii) Advising the Assistant Secretary of Defense (Public Affairs) 
(ASD(PA)) of cases of public interest, particularly those on appeal, 
when the issues raised are unusual or precedent setting, matters of 
disagreement among DoD components, are of concern to agencies outside 
the Department of Defense, or may otherwise require special attention or 
guidance.
    (iv) Advising the ASD(PA) and the Executive Officer, DCAA, 
concurrent with the denial of a request or an appeal, when circumstances 
suggest a news media interest.
    (v) Conferring with the General Counsel; the Assistant Director, 
Operations; and the Assistant Director, Policy and Plans, on the 
desirability of reconsidering a final decision to deny a record, if that 
decision becomes a matter of special concern because it involves either 
an issue of public concern or DoD-wide consequences.

[[Page 748]]

    (vi) Accomplishing program overview, in cooperation with the General 
Counsel, to ensure coordinated guidance to components, and to provide 
the means of assessing the overall conduct of the Agency's FOIA Program.
    (vii) Responding to corrective action recommended by the Special 
Counsel of the Merit Systems Protection Board for arbitrary or 
capricious withholding of records by designated employees of the Agency.
    (2) The Chief, Administrative Management Division (CM) is 
responsible for:
    (i) Establishing, issuing, and updating policies for the DCAA FOIA 
Program; monitoring compliance with this rule; and providing policy 
guidance for the FOIA program.
    (ii) Resolving conflicts that may arise regarding implementation of 
DCAA FOIA policy.
    (iii) Designating an Agency FOIA Advisor, as a single point of 
contact, to coordinate on matters concerning Freedom of Information Act 
policy.
    (3) The DCAA Information and Privacy Advisor, under the supervision 
and guidance of the Chief, Administrative Management Division is 
responsible for:
    (i) Managing the DCAA FOIA Program in accordance with this rule, 
DCAAP 5410.14, applicable DCAA policies as well as DoD and Federal 
regulations.
    (ii) Providing guidelines for managing, administering, and 
implementing the DCAA FOIA program. This would include issuing the DCAA 
FOIA rule, developing and conducting training for those individuals who 
implement the FOIA, and publishing in the Federal Register any 
instructions necessary for the administration of the FOIA program. This 
also includes serving as the informational point of contact for regional 
FOIA coordinators.
    (iii) Maintaining and publishing DCAA Pamphlet 5410.14, ``DCAA 
Freedom of Information Act Processing Guide''.
    (iv) Preparing the Annual Freedom of Information Report to Congress 
as required by DoD 5400.7-R.
    (v) Establishing and maintaining a control system for assigning FOIA 
case numbers to FOIA requests received by Headquarters and regional 
offices.
    (vi) Maintaining a record of FOIA requests received by Headquarters. 
This record is to contain the requester's identification, the date of 
the request, type of information requested, and type of information 
furnished. This record will be maintained and disposed of in accordance 
with DCAA records maintenance and disposition regulations and schedules.
    (vii) Making available for public inspection and copying in an 
appropriate facility or facilities, in accordance with rules published 
in the Federal Register the records specified in paragraph (a)(2) of 5 
U.S.C. 552, unless such records are published and copies are offered for 
sale. Maintain and make available for public inspection and copying 
current indices of these records.
    (4) Heads of Principal Staff Elements are responsible for:
    (i) Reviewing all regulations or other policy and guidance issuances 
for which they are the proponent to ensure consistency with the 
provisions of this rule.
    (ii) Ensuring that the provisions of DCAAP 5410.14 and this rule are 
followed in processing requests for records.
    (iii) Forwarding to the DCAA Information and Privacy Advisor, any 
FOIA requests received directly from a member of the public so that the 
request may be administratively controlled and processed.
    (iv) Ensuring the prompt review of all FOIA requests, and when 
required, coordinating those requests with other organizational 
elements.
    (v) Providing recommendations regarding the releasability of DCAA 
records to members of the public, along with the responsive documents.
    (vi) Providing the appropriate documents, along with a written 
justification for any denial, in whole or in part, of a request for 
records. Those portions to be excised should be bracketed in red pencil, 
and the specific exemption or exemptions cited which provide the basis 
for denying the requested records.

[[Page 749]]

    (vii) Ensuring that documents are marked FOUO at the time of their 
creation if information contained within is considered exempt from 
disclosure.
    (5) The General Counsel is responsible for:
    (i) Ensuring uniformity is maintained in the legal position, and the 
interpretation of the Freedom of Information Act, DoD 5400.7-R, and this 
rule.
    (ii) Consulting with General Counsel, DoD on final denials that are 
inconsistent with decisions of other DoD components, involving issues 
not previously resolved, or raise new or significant legal issues of 
potential significance to other Government agencies.
    (iii) Providing advice and assistance to the Assistant Director, 
Resources; Regional Directors; and the Regional FOIA Coordinators, 
through the DCAA Information and Privacy Advisor, as required, in the 
discharge of their responsibilities.
    (iv) Coordinating Freedom of Information Act litigation with the 
Department of Justice.
    (v) Coordinating on Headquarters denials of initial requests and 
administrative appeals.
    (vi) Ensuring that documents are marked FOUO at the time of their 
creation if information contained within is considered exempt from 
disclosure.
    (6) The Executive Officer shall serve as the coordinator for the 
release of information to the news media.
    (b) Each Regional Director is responsible for the overall management 
of the Freedom of Information Act program within his respective region. 
Under his direction, the Regional Resources Manager is responsible for 
the management and staff supervision of the program and for designating 
a regional FOIA Coordinator.
    (1) Regional Directors are responsible for:
    (i) Implementing and administering the Freedom of Information Act 
program throughout the region.
    (ii) Making the initial determination pertaining to the 
releasability of DCAA records to members of the public. This authority 
cannot be delegated.
    (iii) Delegating signature authority for FOIA correspondence which 
is considered only to be routine in nature, e.g., referrals and the 
release of information.
    (iv) Ensuring that documents are marked FOUO at the time of their 
creation if information contained within is considered exempt from 
disclosure.
    (2) FOIA Coordinators are responsible for:
    (i) Issuing regional instructions that are consistent with the 
policies and procedures defined in DCAAP 5410.14 and this rule.
    (ii) Conducting training on the FOIA program to the FAOs.
    (iii) Submitting a DCAA Form 5410-4, ``Freedom of Information Case 
Summary'', to the DCAA Information and Privacy Advisor at the completion 
of each FOIA case to facilitate the preparation of the annual FOIA 
report to Congress. All case summaries must be submitted no later than 
October 10th for cases completed during the previous fiscal year.
    (iv) Establishing and maintaining a control system to ensure proper 
accountability and processing of FOIA requests.
    (v) Contacting the DCAA Information and Privacy Act Advisor for a 
FOIA case number upon receipt of a FOIA request.
    (c) Managers, Field Audit Offices (FAOs) are responsible for:
    (1) Overall management and administration of the FOIA program within 
organizations under their cognizance.
    (2) Ensuring that the regional FOIA Coordinator promptly receives 
all incoming FOIA requests. Use of facsimile transmission is appropriate 
for all requests received directly by the FAO.
    (3) Ensuring that documents are marked FOUO at the time of their 
creation if information contained within is considered exempt from 
disclosure.

[56 FR 49685, Oct. 1, 1991, as amended at 64 FR 1130, Jan. 8, 1999]



Sec. 290.7  Procedures.

    (a) Procedures for processing material in accordance with the FOIA 
are outlined in DCAAP 5410.14. General provisions are outlined in the 
following paragraphs.
    (b) Requests for audit reports. Audit reports prepared by DCAA are 
the property of and are prepared for the use of

[[Page 750]]

DoD contracting officers. As a result, their release should be at the 
sole discretion of the DoD contracting activity. Requesters seeking 
audit reports should send their requests directly to the DoD contracting 
activity to avoid administrative delay. Typically, requests for copies 
of DCAA audit reports may be identified by requesting those that relate 
to a specific contract number (e.g. DLA600-89-P0222). DoD contract 
numbers may be easily matched to the cognizant DoD contracting activity 
by referring to 48 CFR, ``DoD FAR Supplement'' Appendix G.
    Note: Although DCAA can make a release determination on audit 
reports produced for non-DoD agencies, administrative procedure 
routinely dictates coordination with that agency prior to responding to 
the request. Requesters seeking expeditious processing should forward 
their requests directly to the cognizant contracting officer for 
processing.
    (c) Requests for audit working papers. Audit working papers, as 
described in appendix D, may be sought occasionally in conjunction with 
an audit report or as an independent demand. Normally, the release of 
such records is entirely dependent on the releasability of the related 
audit report. (Note: The procedures for determining the releasability of 
audit reports is provided in general in the aforementioned paragraph and 
in more detail in DCAAP 5410.14). Since the content of audit working 
paper files can be quite diverse and often voluminous, FOIA Coordinators 
should work closely with the requester to ensure that the records 
produced are narrowly defined and entirely responsive to the requester's 
needs.
    (d) Public inspection and copying. Section (a)(2) of the Freedom of 
Information Act requires agencies to make available for public 
inspection and copying, final opinions made in the adjudication of 
cases, statements of policy not yet published in the Federal Register, 
and administrative manuals and instructions. This requirement is 
satisfied by the publication of DCAAI 5025.2,\5\ ``DCAA Index of 
Publications'' and DCAAI 5025.13,\6\ ``Index of DCAA Memorandums for 
Regional Directors''.
---------------------------------------------------------------------------

    \5\ See footnote 3 to Sec. 290.4(c).
    \6\ See footnote 3 to Sec. 290.4(c).
---------------------------------------------------------------------------

    (e) Requests for the examination or copies of records. (1) Members 
of the public may make written requests for copies of DCAA records or 
for permission to examine such records during normal business hours. 
Such requests must be in writing and either explicitly or implicitly 
invoke the Freedom of Information Act, or this rule. These requests 
should be submitted directly to the appropriate DCAA organizational 
element listed in appendix B of this rule. If the appropriate DCAA 
organizational element is either unknown or cannot be ascertained, and 
the record is likely to be in the possession of DCAA, the request may be 
submitted to Defense Contract Audit Agency, Attn: CM, 8725 John J. 
Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219.
    (2) When submitting requests, requesters should:
    (i) Identify each record sought with sufficient detail to facilitate 
the location and easy access to the record requested. Information as to 
where the record originated, subject, date, number, or any other 
identifying particulars should be provided whenever possible. DCAA 
organizational elements receiving requests which do not reasonably 
describe the record requested will advise the requester accordingly. 
Generally, a record is not reasonably described unless the requester 
provides information permitting an organized, nonrandom search of DCAA 
files and/or information systems. In providing descriptions based on 
events, the requester must provide information which permits DCAA 
organizational elements to, at least, infer the specific record sought.
    (ii) Identify all other Federal agencies subject to the provisions 
of the FOIA to which the request has been sent. This will reduce both 
processing and coordination time between agencies and redundant 
referrals.
    (iii) Provide a statement of their willingness to pay assessable 
charges. The statement must include a specific monetary amount if the 
assessable fees are likely to exceed the fee waiver threshold of $15.00 
or a specific justification for any waiver or reduction of fees sought 
based on public interest

[[Page 751]]

in release or disclosure. DCAA organizational elements will notify 
requesters of deficiencies in fee declarations, and provide them the 
opportunity to amend initial declarations. Determinations on the 
adequacy of requester fee declarations are not subject to appeal unless: 
The DCAA organizational element has denied a specific request for the 
assessment of fees under one of the established requester categories; or 
has denied a request for the waiver or reduction of fees in the public 
interest.
    (3) When a DCAA organizational element has no records responsive to 
a request, the requester will be notified promptly that should he or she 
determine such request to be adverse in nature, he or she may exercise 
their appeal rights. In cases where the request has been misdirected and 
the DCAA organizational element is aware of the appropriate FOIA 
respondent, they shall refer the request to the appropriate DCAA 
organizational element or other Federal agency through FOIA channels, 
and notify the requester of the referral. The 20 working day period 
allowed for responding to requests will not begin until the DCAA 
organizational element having the responsive records receives a request 
complying with procedural requirements of this rule, including 
statements on the payment of fees.
    (4) The provisions of the FOIA are intended for parties with private 
interests. Officials seeking documents or information on behalf of 
foreign governments, other Federal agencies, and state or local agencies 
should be encouraged to employ official channels. The release of records 
to individuals under the FOIA is a public release of information. DCAA 
organizational elements will consider FOIA requests from such officials 
as made in a private, rather than official capacity, and will make 
disclosure and fee determinations accordingly.
    (f) Referrals. (1) Records originating in or based on information 
obtained from other Federal agencies subject to the FOIA may be referred 
to that agency. In processing FOIA requests for such records, DCAA 
elements, after coordinating with the originating agency, may refer the 
request, along with a copy of the responsive records in its possession, 
to that agency for direct response. The requester is to be notified of 
the referral. However, if for investigative or intelligence purposes, 
the outside agency desires anonymity, FOIA Coordinators may only respond 
directly to the requester after coordination with the agency.
    (2) Referral of audit reports. Audit reports prepared by DCAA are 
the property of and are prepared for the use of the DoD contracting 
officers. Their release is at the discretion of the DoD contracting 
activity. Therefore any FOIA request for audit reports prepared for DoD 
components should be referred to the cognizant DoD contracting activity 
and the requester notified of the referral. To avoid the delay 
associated with the referral process, requesters should be advised to 
send requests for audit reports directly to the cognizant DoD 
contracting activity. Requests for audit reports prepared for non-DoD 
agencies should be treated as requests for DCAA records.
    (3) Referral of work papers. When a requester seeks workpapers, the 
cognizant contracting officer must furnish a notice of disposition to 
the appropriate activity pertaining to the releasability of the audit 
report. The notice of disposition will then be used to determine 
releasability of the workpapers. Details concerning the appropriate 
processing procedures may be found in DCAAP 5410.14.
    (4) All other requests should be directed to the appropriate 
Regional Director, if known. When the location of the record is not 
known, the request should be directed to the DCAA Information and 
Privacy Advisor.
    (5) Time limits. DCAA organizational elements are to respond 
promptly to requesters complying with the procedural requirements 
outlined in this rule. When a significant number of requests are being 
processed, e.g. 10 or more, the requests shall be completed in order of 
receipt. However, this does not preclude completing action on a request 
which can be easily answered, regardless of its ranking within the order 
of receipt. Action may be expedited on a request regardless of its 
ranking within the order of receipt upon a showing of exceptional need 
or urgency. Exceptional need or urgency is

[[Page 752]]

determined at the discretion of the FOIA Coordinator.
    (i) Upon receipt of a properly submitted FOIA request, DCAA 
organizational elements should contact the DCAA Information and Privacy 
Advisor for a FOIA case number. IDAs should:
    (A) Locate and assemble responsive records.
    (B) Determine releasability under the provisions of this rule.
    (C) Determine the appropriate fees to be charged and
    (D) Advise the requester accordingly. Initial determinations on 
either the release or denial of records, and notice to requesters, must 
be provided within 20 working days following receipt of the request by 
the cognizant DCAA organizational element.
    (ii) In certain cases, IDAs may need to exercise an extension to the 
normal 20 working day period cited above. IDAs are to notify the 
requester, within the initial 20 working day period, of the extension, 
the circumstances necessitating it, and the anticipated date of a 
determination. Approved extensions are not to exceed 10 working days, 
and all extensions should be indicated on DCAA Form 5410-4, section 6. 
Circumstances where such extensions may be approved include:
    (A) The record(s) sought are geographically located at places other 
than the DC+AA organizational element processing the request.
    (B) The request requires the collection and review of a substantial 
number of records.
    (C) The disclosure determination requires consultation with another 
DCAA organizational element or other Federal agency with a substantial 
interest.
    (iii) As an alternative to the previously mentioned, DCAA 
organizational elements may seek informal agreements with requesters for 
extensions in unusual circumstances when time limits become an issue in 
the response to the request.
    (iv) Misdirected requests should be referred within 20 working days 
to the proper Federal agency or DCAA organizational elment through FOIA 
channels, and the requester notified of the referral. The 20 working day 
period allowed for responding to requests will not begin until the DCAA 
organizational element having the responsive records receives the 
request.
    (6) Initial disclosure determinations. (i) Initial determinations to 
make records available may only be made by those IDAs designated in this 
rule.
    Note: Requests for audit reports should be directed to the cognizant 
contracting officer for release determination. (See Sec. 290.7(b)).

When a decision is made to release records in response to a FOIA 
request, DCAA organizational elements will promptly make the records 
available to the requester. When the request is for the examination of 
releasable records, DCAA organizational elements will advise the 
requester when and where he/she may appear. Examinations will be held 
during normal business hours. If a record is not provided in response to 
a FOIA request, the IDA will advise the requester, in writing, of the 
rationale for not providing the record.
    (ii) IDAs should consult the Executive Officer, prior to releasing 
records on matters considered newsworthy or when releasing records to 
media representatives. Copies of all media requests should be submitted 
to the Executive Officer.
    (iii) The following reasons, other than the statutory exemptions 
cited in the FOIA, are provided for not releasing a record in response 
to a FOIA request.
    (A) The request is transferred to another DoD component, or to 
another Federal agency.
    (B) The Agency determines through knowledge of its files and 
reasonable search efforts that it neither controls nor otherwise 
possesses the requested record.
    (C) A record has not been described with sufficient particularity to 
enable the Agency to locate it by conducting a reasonable search.
    (D) The requester has failed unreasonably to comply with procedural 
requirements, including payment of fees, imposed by this rule.
    (E) The request is withdrawn by the requester.
    (F) The information requested is not a record within the meaning of 
the FOIA and this rule.

[[Page 753]]

    (7) Denials. (i) A record in the possession and control of DCAA may 
be withheld only when the record falls within one or more of the nine 
categories of records exempt from mandatory disclosure under the FOIA, 
and the use of discretionary authority to release the record is 
determined to be unwarranted. (Note: Since audit reports are prepared 
for the use of DoD contracting officers, their release is at the 
discretion of the DoD contracting activity. To facilitate an expeditious 
response, requesters should send their requests directly to the DoD 
contracting activity. (See Sec. 290.7(b)). The specific exemptions are 
detailed in DCAAP 5410.14.
    (ii) Although exempt portions of records may be denied, nonexempt 
portions must be released to the requester when it can reasonably be 
assumed that the excised information could not be reconstructed. When a 
record is denied in whole, based on distortion or reconstruction 
potential, the IDA will prepare a response advising the requester of the 
determination, and the response will specifically state that it is not 
possible to reasonably segregate meaningful portions for release.
    (iii) When a request for a record is denied in whole or in part, the 
IDA will inform the requester in writing of the specific exemption(s) on 
which the denial is based and explain the determination in sufficient 
detail to permit the requester to make a decision concerning appeal. The 
determination will also inform the requester of his/her appeal rights. 
All appeals should be made within 60 calendar days from the date of the 
initial denial, contain the reasons for the requester's disagreement 
with the determination, and be addressed to the Assistant Director, 
Resources, Defense Contract Audit Agency, 8725 John J. Kingman Road, 
Suite 2135, Fort Belvoir, VA 22060-6219.
    (iv) Records or portions of records which have been previously 
released become part of the public domain, and cannot be denied 
thereafter.
    (8) Administrative Appeals of Denials. (i) If the IDA declines to 
provide a record because he/she considers it exempt, that decision may 
be appealed by the requester, in writing, to the Assistant Director, 
Resources, DCAA.
    Note: Normally, IDAs would not issue denials for requests for audit 
reports. The denial authority for such records generally rests with the 
cognizant DoD contracting activity. (See Sec. 290.7(b)). The appeal 
should be accompanied by a copy of the letter denying the initial 
request. Such appeals should contain the basis for disagreement with the 
initial refusal. Appeal procedures also apply to the disapproval of a 
request for waiver or reduction of fees. A ``no record'' finding may be 
appealed which allows the requester to challenge the adequacy of the 
Agency's search. Records which are denied should be retained during the 
time permitted for appeal.
    (ii) IDAs shall advise the requester that an appeal should be filed 
so that it reaches the designated appellate authority no later than 60 
calendar days after the date of the initial denial letter. At the 
conclusion of this period, except for good cause shown as to why the 
appeal was not timely, the case may be considered closed; however, such 
closure does not preclude the requester from filing litigation for 
denial of his appeal. If the requester has been provided a series of 
determinations for a single request, the time for appeal will begin on 
the date of the last determination of the series. Records which are 
denied shall be retained for a period of six years to meet the statute 
of limitations of claims requirement.
    (iii) Final determinations normally shall be made within 20 working 
days of receipt of an appropriately submitted appeal.
    (9) Delay in responding to an appeal. (i) When additional time is 
required to respond to the appeal, the final determination may be 
delayed for the number of working days (not to exceed 10 days) that were 
not utilized as additional time for responding to the initial request. 
Requesters shall be advised that, if the delay exceeds the statutory 
extension provision or is for reasons other than the unusual 
circumstances previously described, they may consider their 
administrative remedies exhausted. They may, however, without 
prejudicing their right of judicial remedy, await a substantive 
response. DCAA shall continue to process the case expeditiously, whether 
or not the requester seeks a court order for release of the records, but 
a copy of any response provided subsequent to filing a complaint shall 
be forwarded to

[[Page 754]]

the Department of Justice through the DCAA General Counsel.
    (ii) When the Assistant Director, Resources, DCAA, makes a 
determination to release all or a portion of the records on appeal, the 
records shall be made available promptly to the requester after 
compliance with procedural requirements. The final denial of a request 
will be made in writing, explain the exemption(s) invoked, advise that 
the material being denied does not contain meaningful portions that are 
reasonably segregable, and also advise the requester of the right of 
judicial review.
    (10) Judicial action. A requester will be deemed to have exhausted 
his administrative remedies after he has been denied the requested 
record by the Assistant Director, Resources, or when the Agency fails to 
respond to his request within the time limits prescribed by the FOIA and 
this rule. The requester may then seek an order from a U.S. District 
Court in the district in which he resides or has his principal place of 
business; the district in which the record is situated; or in the U.S. 
District Court for the District of Columbia, enjoining the Agency from 
withholding the record and ordering its production.

[56 FR 49685, Oct. 1, 1991, as amended at 56 FR 56932, Nov. 7, 1991; 57 
FR 15254, Apr. 27, 1992; 60 FR 35699, July 11, 1995; 64 FR 1131, Jan. 8, 
1999]



Sec. 290.8  Fees.

    (a) Fees shall be determined in accordance with the DoD fee 
schedule, which is detailed in DCAAP 5410.14. Fees reflect direct costs 
for search, review (in the case of commercial requesters), and 
duplication of documents, collection of which is permitted by the FOIA. 
Fees are subject to limitations on the nature of assessable fees based 
on the category of the requester; statutory and automatic waivers based 
on the category determination and cost of routine collection; and either 
the waiver or reduction of fees when disclosure serves the public 
interest.
    (b) Fees will not be charged when direct costs for a FOIA request 
are $15.00 or less, the automatic fee waiver threshold, regardless of 
category.
    (c) Fee assessment. In order to be as responsive as possible to FOIA 
requests, DCAA organizational elements should adhere to the following 
when assessing fees:
    (1) Evaluate each request to determine the requester category and 
adequacy of the fee declaration. An adequate fee declaration requires a 
willingness by the requester to pay fees in an amount equal to, or 
greater than, the assessable charges for the request.
    (2) Provide requesters an opportunity to amend inadequate fee 
declarations and provide estimates of prospective charges when required. 
When a requester fails to provide an adequate fee declaration within 30 
days after notification of a deficiency, the request for information 
will be considered withdrawn.
    (3) A requester's claims for assessment of fees under a specific 
category will be carefully considered. The IDA may require a requester 
to substantiate a claim for assessment under a claimed category. In the 
absence of requester claims, the IDA will determine the category into 
which a requester falls, basing its determination on all available 
information.
    (4) When a DCAA organizational element disagrees with a requester 
claim for fee assessment under a specific category, the IDA will provide 
the requester with written determination indicating the following:
    (i) The requester should furnish additional justification to warrant 
the category claimed.
    (ii) A search for responsive records will not be initiated until 
agreement has been attained relative to the category of the requester.
    (iii) If further category information has not been received within a 
reasonable period of time, the component will render a final category 
determination; and
    (iv) The determination may be appealed to the Assistant Director, 
Resources, within 60 calendar days of the date of the determination.
    (d) When a DCAA organizational element estimates or determines that 
allowable charges that a requester may be required to pay are likely to 
exceed $250.00, they shall notify the requester

[[Page 755]]

of the likely cost and obtain satisfactory assurance of full payment. 
This fee declaration generally applies when the requester has a history 
of prompt payments, however, an advance payment may be required of an 
amount up to the full estimated charges in the case of requesters with 
no history of payment.
    (e) Where a requester has previously failed to pay a fee charged 
within 30 calendar days from the date of billing, DCAA organizational 
elements may require the requester to pay the full amount due, plus any 
applicable interest or demonstrate satisfaction of the debt, and to make 
an advance payment of the full amount of estimated fees, before 
processing begins on a new or pending request.
    (f) After all work is completed on a request, and the documents are 
ready for release, DCAA organizational elements may request payment 
before forwarding the documents if there is no payment history on the 
requester, or if the requester has previously failed to pay a fee in a 
timely fashion (i.e., within 30 calendar days from the date of billing). 
Documents may not be held for release pending payment from requesters 
with a history of prompt payment.
    (g) The administrative time limits for responding to a request will 
begin only after the DCAA organizational element has received an 
adequate declaration from the requester stating a willingness to pay 
fees, and satisfaction that all outstanding debts have been paid.
    (h) DCAA organizational elements can bill requesters for services 
provided in responding to a request. Payment of fees may be made by 
personal check, bank draft drawn on a U.S. bank, or by U.S. Postal money 
order. All payments of this type are to be made payable to the U.S. 
Treasurer.
    (i) Aggregating requests. Occasionally, a requester may file 
multiple requests at the same time, each seeking portions of a document 
or documents, solely to avoid payments of fees. When a DCAA 
organizational element reasonably believes that a requester is 
attempting to do so, the DCAA organizational element may aggregate such 
requests and charge accordingly. One element to be considered would be 
the time period in which the requests have occurred. In no case may DCAA 
organizational elements aggregate multiple requests on unrelated 
subjects from one requester.
    (j) Fee waivers. (1) The determination to waive fees is at the 
discretion of IDAs designated in this rule. When direct costs for a FOIA 
request total the automatic fee waiver threshold, or is less, fees shall 
be waived automatically for all requesters, regardless of category.
    (2) Documents will be furnished without charge, or at a charge 
reduced below fees assessed to the categories of requesters, when the 
IDA determines that a waiver or reduction of fees is in the public 
interest because furnishing the information is likely to contribute 
significantly to public understanding of the operations of DCAA, and is 
not primarily in the commercial interest of the requester. DCAA 
organizational elements should refer to DCAAP 5410.14 for factors to 
consider in applying fee waivers due to public interest. Each fee 
decision must be considered on a case-by-case basis and upon the merits 
of the information provided in each request. When the question of 
whether to charge or waive the fee cannot be clearly resolved, DCAA 
organizational elements should rule in favor of the requester.

         Appendix A to Part 290--DCAA's Organization and Mission

    (a) Purpose. This section implements 5 U.S.C. 552 by describing the 
central and field organizations of DCAA.
    (b) Origin and Authority. DCAA was established by the Secretary of 
Defense under Department of Defense (DoD) Directive 5105.36 \1\ (32 CFR 
part 357) and began operating on July 1, 1965. Its Director reports to 
the Comptroller of the Department of Defense.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (c) Objective. Assist in achieving the objective of prudent 
contracting by providing DoD officials responsible for procurement and 
contract administration with financial information and advice on 
proposed or existing contracts and contractors, as appropriate.
    (d) Mission. (1) DCAA performs all necessary contract audits for the 
Department of

[[Page 756]]

Defense, and provides accounting and financial advisory service 
regarding contracts to all DoD components responsible for procurement 
and contract administration. These services are provided in connection 
with negotiation, administration, and settlement of contracts and 
subcontracts. It also furnishes advisory contract audit service to a 
number of other government agencies under agreements between the 
Department of Defense and such agencies.
    (2) DCAA audits contractors' and subcontractors' accounts, records, 
documents, and other evidence; systems of internal control, accounting, 
costing, estimating, and general business practices and procedures to 
give advice and recommendations to procurement and contract 
administration personnel on: acceptability of costs incurred under cost, 
redetermination, incentive, and similar type contracts; acceptability of 
estimates of costs to be incurred as represented by contractors incident 
to the award, negotiation, and modification of contracts; and adequacy 
of contractors' accounting and financial management systems and 
estimating procedures. DCAA also performs post-award audits of contracts 
for compliance with the provisions of Public Law 87-653 (Truth in 
Negotiations), and reviews contractor compliance with the Cost 
Accounting Standards.
    (3) DCAA assists responsible procurement or contract administration 
activities in their surveys of the purchasing-procurement systems of 
major contractors; and cooperates with other DoD components on reviews, 
audits, analyses, or inquiries involving contractors' financial 
positions or financial and accounting policies, procedures, or 
practices. DCAA also maintains liaison auditors at major procuring and 
contract administration offices and provides assistance in the 
development of procurement policies and regulations.
    (e) Composition. (1) DCAA consists of five major organizational 
elements: A Headquarters and five regions. The five regional offices 
manage over 400 field audit offices (FAOs) and suboffices located 
throughout the United States and overseas. An FAO is identified as 
either a branch office or a resident office. Suboffices are established 
by regional directors as extensions of FAOs when required to furnish 
contract audit service more economically. A suboffice is dependent on 
its parent FAO for release of audit reports and other administrative 
support.
    (2) The Headquarters located at Fort Belvoir, Virginia consists of:
    (i) The Director who exercises worldwide direction and control of 
DCAA.
    (ii) The Deputy Director who serves as principal assistant to the 
Director and acts for the Director in his absence.
    (iii) The Assistant Director, Operations, authorized to act for the 
Director and Deputy Director in their absence, is responsible for staff 
functions related to audit management, and technical audit programs, 
supervises the Defense Contract Audit Institute and the Technical 
Services Center in Memphis, Tennessee and the procurement/contract 
administration liaison offices.
    (iv) The Assistant Director, Policy and Plans, is responsible for 
audit policy and procedures and related liaison functions.
    (v) The Assistant Director, Resources, is responsible for the 
programs and procedures related to the management and administration of 
resources required to support the audit mission.
    (vi) The General Counsel provides legal and legislative advice to 
the Director and all members of the Agency staff.
    (vii) The Executive Officer performs a variety of special projects 
and assignments for the Director and Deputy Director.
    (viii) The Special Assistant for Quality reviews the Agency's 
compliance with established audit quality control standards, policies, 
and procedures and other internal control requirements.
    (3) Regional offices are located in Smyrna, GA; Lowell, MA; Irving, 
TX; La Mirada, CA; and Philadelphia, PA. Regional directors direct and 
administer the DCAA audit mission, and manage personnel and other 
resources assigned to the regions; manage the contract audit program; 
and direct the operation of FAOs within their region. Principal elements 
of regional offices are the Regional Director, Deputy Regional Director, 
Regional Audit Managers, Regional Special Programs Manager, and Regional 
Resources Manager.
    (4) A resident office is established at a contractor's location when 
the amount of audit workload justifies the assignment of a permanent 
staff of auditors and support staff. A resident office may also perform 
procurement or contract administration liaison functions.
    (5) A branch office is established at a strategically situated 
location within the region, responsible for performing all contract 
audit service within the assigned geographical area, exclusive of 
contract audit service performed by a resident or liaison office within 
the area. A branch office may also perform procurement or contract 
administration liaison functions.
    (6) If requested, a DCAA liaison office is established at a DoD 
procurement or contract administration office when required on a full-
time basis to provide effective communication and coordination among 
procurement, contract administration, and contract audit elements. 
Liaison offices assist in effective utilization of contract audit 
services.

[56 FR 49685, Oct. 1, 1991, as amended at 60 FR 35699, July 11, 1995; 64 
FR 1131, Jan. 8, 1999]

[[Page 757]]

          Appendix B to Part 290--DCAA's FOIA Points of Contact

       (Regional Offices Listed Alphabetically by State and City)

                               California

DCAA Western Regional Office, Attn: RCI-4 (FOIA Coordinator), 16700 
Valley View Avenue, Suite 300, La Mirada, CA 90638-5830, (714) 228-7083

    Geographical Area of Responsibility: Alaska, California, Hawaii, 
Idaho, Montana, Nevada, Oregon, and Washington.
    Pacific Ocean and Asian Islands.
    Asia except the Middle East.
    Australia.

                                 Georgia

DCAA Eastern Regional Office, Attn: RCI-1 (FOIA Coordinator), 2400 Lake 
Park Drive, Suite 300, Smyrna, GA 30080-7644, (770) 319-4510

    Geographical Area of Responsibility: Alabama, Florida, Georgia, 
Indiana, Kentucky, Louisiana, Mississippi, North Carolina, Ohio, 
Tennessee, Virginia, West Virginia, Central America, South America, 
Bermuda, Puerto Rico and nearby Islands, and Mexico.

                              Massachusetts

DCAA Northeastern Regional Office, Attn: RCI-2 (FOIA Coordinator), 59 
Composite Way, Suite 300, Lowell, MA 01851-5150, (978) 551-9722

    Geographical Area of Responsibility: Connecticut, Maine, 
Massachusetts, New Hampshire, Rhode Island, Vermont, Michigan (excluding 
the Upper Peninsula), all New York Counties except Steuben, Schuyler, 
Cheming, Tompkins, Tioga, Broome, Chenango, Otsego, Delaware, and 
Sullivan.
    Africa and Adjacent Islands.
    Europe and Adjacent Islands.
    Middle East and Adjacent Islands.
    Greenland.
    Iceland.

                              Pennsylvania

DCAA Mid-Atlantic Regional Office, Attn: RCI-6 (FOIA Coordinator), 615 
Chestnut Street, suite 1000, Philadelphia, PA 19106-4498, (215) 597-5403

    Geographical Area of Responsibility: Delaware, District of Columbia, 
Maryland, and New Jersey.
    New York Counties of Steuben, Schuyler, Chemung, Tompkins, Tioga, 
Broome, Chenango, Otsego, Delaware, and Sullivan. The IBM Suboffice 
located at Tarrytown, New York.
    Pennsylvania Counties East of and including Tioga, Lycoming, Union, 
Mifflin, Juniata, and Franklin.
    Virginia Counties East and North of and including Stafford, 
Culpeper, Rappahannock, Page, Shenandoah, and Frederick.

                                  Texas

DCAA Central Regional Office, Attn: RCI-3 (FOIA Coordinator), 106 Decker 
Court, suite 300, Irving, TX 75062-2795, (214) 650-4893

    Geographical Area of Responsibility: Arizona, Arkansas, Colorado, 
Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North 
Dakota, Oklahoma, South Dakota, Texas, Utah, Wisconsin, Wyoming and 
Louisiana Parishes North of and including Vernon, Rapides, and 
Avoyelles.

                                Virginia

DCAA Headquarters, Attn: CM (Information and Privacy Advisor), 8725 John 
J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219, (703) 767-1000

    (a) Miscellaneous.
    (1) The following publications may be obtained from the Defense 
Contract Audit Agency, ATTN: CMO, 8725 John J. Kingman Road, Suite 2135, 
Fort Belvoir, VA 22060-6219, (703) 767-1066. Many of these items, among 
others, may be obtained from the DCAA Web site. Since these materials 
are publicly available, requesters need not invoke the Freedom of 
Information Act to obtain copies of the publications selected.
    (i) DCAAI 5025.2, Index of Numbered Publications, lists Agency 
publications.
    (ii) DCAAP 1421.3, Catalog of Training Courses, lists training 
courses available from the Defense Contract Audit Institute, Specific 
training courses are also available.
    (2) Although the following publication is publicly available, the 
memorandums listed may or may not be subject to withholding under the 
Freedom of Information Act. Those memorandums marked with an ``(R)'', 
denoting releasable (e.g. 94-PFD-063R)), are available from the above 
address. However, Memorandums for Regional Directors (MRDs) marked 
``(NR)'', meaning not releasable, cannot be obtained from this source. 
Requests for (NR) MRDs should be sought under the auspices of the 
Freedom of Information Act from the Defense Contract Audit Agency, ATTN: 
CM, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 22060-6219;.
    (i) DCAAI 5025.13, Index of DCAA Memorandums for Regional Directors 
(MRDs), lists numbered memorandums pertaining to Agency policy, 
procedure, and informational topics.
    (3) Requesters should plainly display the words ``Freedom of 
Information Act Request'' on the lower left hand corner of the envelope 
to ensure prompt handling.

[[Page 758]]

    (b) [Reserved]

[56 FR 49685, Oct. 1, 1991, as amended at 57 FR 30904, July 13, 1992; 58 
FR 63084, Nov. 30, 1993; 60 FR 18006, Apr. 10, 1995; 60 FR 35699, July 
11, 1995; 61 FR 4885, Feb. 9, 1996; 61 FR 5510, Feb. 13, 1996; 64 FR 
1131, Jan. 8, 1999]

              Appendix C to Part 290--For Official Use Only

    (a) General. Information that has not been given a security 
classification pursuant to the criteria of an Executive Order, but which 
may be withheld from the public for one or more of the reasons cited in 
FOIA Exemptions 2 through 9 shall be considered as being for official 
use only. No other material shall be considered or marked ``For Official 
Use Only'' (FOUO). FOUO is not authorized as an anemic form of 
classification to protect national security interests.
    (b) Prior FOUO Application. The prior application of FOUO markings 
is not a conclusive basis for withholding a record that is requested 
under the FOIA. When such a record is requested, the information in it 
shall be evaluated to determine whether, under current circumstances, 
FOIA exemptions apply in withholding the record or portions of it. If 
any exemption or exemptions apply or applies, it may nonetheless be 
released when it is determined that no governmental interest will be 
jeopardized by its release. (1) Historical Papers. Records such as 
notes, working papers, and drafts retained as historical evidence of 
Agency actions enjoy no special status apart from the exemptions under 
the FOIA.
    (2) Time to Mark Records. The marking of records at the time of 
their creation provides notice of FOUO content and facilitates review 
when a record is requested under the FOIA. Records requested under the 
FOIA that do not bear such markings, shall not be assumed to be 
releasable without examination for the presence of information that 
requires continued protection and qualifies as exempt from public 
release.
    (3) Distribution Statement. Information in a technical document that 
requires a distribution statement pursuant to DoD Directive 5230.24 \1\ 
shall bear that statement and may be marked FOUO, as appropriate.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (c) Markings. (1) Location of Markings. (i) An unclassified document 
containing FOUO information shall be marked ``For Official Use Only'' at 
the bottom on the outside of the front cover (if any), on each page 
containing FOUO information, and on the outside of the back cover (if 
any).
    (ii) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information appearing 
on the page.
    (iii) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the bottom of the page.
    (iv) Other records, such as, photographs, films, tapes, or slides, 
shall be marked ``For Official Use only'' or ``FOUO'' in a manner that 
ensures that a recipient or viewer is aware of the status of the 
information therein.
    (v) FOUO material transmitted outside the Department of Defense 
requires application of an expanded marking to explain the significance 
of the FOUO marking. This may be accomplished by typing or stamping the 
following statement on the record prior to transfer:



This document contains information
EXEMPT FROM MANDATORY DISCLOSURE
Under the FOIA. Exemptions . . . . . apply.
    (2) Instructions for marking DCAA audit reports are contained in 
Chapter 10 of the Contract Audit Manual (CAM)\2\.
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    \2\ Copies may be obtained from the Defense Contract Audit Agency, 
Attn: CMO, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 
22060-6219.
---------------------------------------------------------------------------

    (3) DCAA Label 4, FOUO Cover Sheet. This form may be used to further 
identify FOUO information.
    (d) Dissemination and Transmission. (1) Release and Transmission 
Procedures. Until FOUO status is terminated, the release and 
transmission instructions that follow apply:
    (i) FOUO information may be disseminated within the Agency and 
between officials of DoD Components and DoD contractors, consultants, 
and grantees to conduct official business for the Department of Defense. 
Recipients shall be made aware of the status of such information, and 
transmission shall be by means that preclude unauthorized public 
disclosure. Transmittal documents shall call attention to the presence 
of FOUO attachments.
    (ii) Agency and DoD holders of FOUO information are authorized to 
convey such information to officials in other departments and agencies 
of the executive and judicial branches to fulfill a government function, 
except to the extent prohibited by the Privacy Act. Records thus 
transmitted shall be marked ``For Official Use Only'', and the recipient 
shall be advised that the information has been exempted from public 
disclosure, pursuant to the FOIA, and that special handling instructions 
do or do not apply.

[[Page 759]]

    (iii) Release of FOUO information to Members of Congress is governed 
by DoD Directive 5400.4 \3\ Release to the GAO is governed by DoD 
Directive 7650.1 \4\ Records released to the Congress or GAO should be 
reviewed to determine whether the information warrants FOUO status. If 
not, prior FOUO markings shall be removed or effaced. If withholding 
criteria are met, the records shall be marked FOUO and the recipient 
provided an explanation for such exemption and marking. Alternatively, 
the recipient may be requested, without marking the record, to protect 
against its public disclosure for reasons that are explained.
---------------------------------------------------------------------------

    \3\ See footnote 1 to paragraph (b)(3).
    \4\ See footnote 1 to paragraph (b)(3).
---------------------------------------------------------------------------

    (iv) Records or documents containing FOUO information will be 
transported between offices in such a manner as to preclude disclosure 
of the contents. First-class mail and ordinary parcel post may be used 
for transmission of FOUO information. The double envelope system 
required for classified material may be used when it is considered 
desirable to exclude examination by mail handling personnel. In such 
cases, the inner envelope should be addressed to the intended recipient 
by title or name and contain a statement that the envelope is to be 
opened by the addressee only.
    (v) FOUO material prepared on personal computers or other data 
processing equipment should be password protected at origination.
    (vi) Requests for Field Detachment sensitive information must be 
coordinated with the Director, Field Detachment, through Headquarters, 
DCAA.
    (2) Transporting FOUO Information. Records containing FOUO 
information shall be transported in a manner that precludes disclosure 
of the contents. When not commingled with classified information, FOUO 
information may be sent via first-class mail or parcel post. Bulky 
shipments, such as distributions of FOUO Directives or testing 
materials, that otherwise qualify under postal regulations may be sent 
by fourth-class mail.
    (3) Electrically Transmitted Messages. Each part of electrically 
transmitted messages containing FOUO information shall be marked 
appropriately. Unclassified messages containing FOUO information shall 
contain the abbreviation ``FOUO'' before the beginning of the text. Such 
messages shall be transmitted in accordance with communications security 
procedures in Allied Communication Publication 121 (U.S. Supp 1) for 
FOUO information.
    (e) Safeguarding FOUO Information. (1) During Duty Hours. During 
normal working hours, records determined to be FOUO shall be placed in 
an out-of-sight location if the work area is accessible to 
nongovernmental personnel.
    (2) During Nonduty Hours. At the close of business, FOUO records 
shall be stored so as to preclude unauthorized access. Filing such 
material with other unclassified records in unlocked files or desks, 
etc., is adequate when normal U.S. Government or Government-contractor 
internal building security is provided during nonduty hours. When such 
internal security control is not exercised, locked buildings or rooms 
normally provide adequate after hours protection. If such protection is 
not considered adequate, FOUO material shall be stored in locked 
receptacles such as file cabinets, desks, or bookcases. FOUO records 
that are subject to the provisions of Public Law 86-36 shall meet the 
safeguards outlined for that group of records.
    (3) Field audit offices located in contractor owned facilities will 
ensure that material marked FOUO is stored in a locked receptacle to 
which the contractor does not have access during nonduty hours.
    (f) Termination, Disposal and Unauthorized Disclosures. (1) 
Termination. The originator or other competent authority, e.g., initial 
denial and appellate authorities, shall terminate ``For Official Use 
Only'' markings or status when circumstances indicate that the 
information no longer requires protection from public disclosure. When 
FOUO status is terminated, all known holders shall be notified, to the 
extent practical. Upon notification, holders shall efface or remove the 
``For Official Use Only'' markings, but records in file or storage need 
not be retrieved solely for that purpose.
    (2) Disposal. (i) Nonrecord copies of FOUO materials may be 
destroyed by tearing each copy into pieces to preclude reconstructing, 
and placing them in regular trash containers. When local circumstances 
or experience indicates that this destruction method is not sufficiently 
protective of FOUO information, local authorities may direct other 
methods but must give due consideration to the additional expense 
balanced against the degree of sensitivity of the type of FOUO 
information contained in the records.
    (ii) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 
chapter 33, as implemented by DCAAM 5015.1\5\, ``Files Maintenance and 
Disposition Manual''.
---------------------------------------------------------------------------

    \5\ See footnote 2 to paragraph (c)(2).
---------------------------------------------------------------------------

    (3) Unauthorized Disclosure. The unauthorized disclosure of FOUO 
records does not constitute an unauthorized disclosure of DoD 
information classified for security purposes. Appropriate administrative 
action shall be taken, however, to fix responsibility for unauthorized 
disclosure whenever feasible, and appropriate disciplinary action shall 
be

[[Page 760]]

taken against those responsible. Unauthorized disclosure of FOUO 
information that is protected by the Privacy Act may also result in 
civil and criminal sanctions against responsible persons. The DCAA 
organizational element or DoD component that originated the FOUO 
information shall be informed of its unauthorized disclosure.
    (g) Protection of Field Detachment Sensitive Information. (1) 
Definition. All communication, which qualifies for withholding under 
Exemptions (2) through (9), between regular DCAA organizational elements 
and Field Detachment offices is sensitive information and, as a minimum, 
shall be marked: FOR OFFICIAL USE ONLY (FOUO).
    (2) Markings. (i) Communications, which qualify for withholding 
under Exemptions (2) through (9) initiated by a Field Detachment office, 
will bear the following marking:

                          FOR OFFICIAL USE ONLY

Access limited to addressee and his/her designated representative(s) 
with a need-to-know.
This document may not be reproduced or further disseminated without the 
approval of the Director, Field Detachment, DCAA.

    (ii) All correspondence specifically exempt under Exemptions (2) 
through (9), including assist audit requests, generated by a regular 
(non-FD) DCAA office, which is addressed to the Field Detachment, either 
Headquarters or a field audit office, will be marked FOR OFFICIAL USE 
ONLY and will be limited within the FAO to one protected office copy.
    (3) Storage. (i) All Field Detachment sensitive information in the 
possession of a regular DCAA office will be stored in a classified 
container, if available. If a classified container is not available, the 
sensitive information shall be stored in a locked container controlled 
by the FAO manager.
    (ii) Permanent files currently maintained by regular DCAA offices, 
which are available to all FAO personnel, should not contain any 
detailed information on Field Detachment audit interest. That 
information shall be protected as sensitive information and stored in 
accordance with paragraph (g)(3)(i) of this appendix.
    (4) Dissemination. (i) Access to Field Detachment sensitive 
information by other DCAA audit and administrative personnel within the 
office shall be on a strict need-to-know basis as determined by the FAO 
manager.
    (ii) Requests by non-DCAA personnel for access to Field Detachment 
sensitive information must be coordinated with the Director, Field 
Detachment, through Headquarters, DCAA.

[56 FR 49685, Oct. 1, 1991, as amended at 60 FR 18006, Apr. 10, 1995; 60 
FR 35699, July 11, 1995]

              Appendix D to Part 290--Audit Working Papers

    (a) Definition
    (1) Audit working papers contain information from accounting and 
statistical records, personal observations, the results of interviews 
and inquiries, and other available sources. Audit working papers may 
also include contract briefs, copies of correspondence, excerpts from 
corporate minutes, organization charts, copies of written policies and 
procedures, and other substantiating documentation. The extent and 
arrangement of working paper files will depend to a large measure on the 
nature of the audit assignment.
    (2) Working papers are generally classified in two categories: the 
permanent file and the current file.
    (i) Permanent file.
    (A) The permanent file on each contractor is a central repository of 
information gathered during the course of an audit which has continuing 
value and use to subsequent audits expected to be performed at the same 
contractor. Permanent files are useful in preparing the audit program 
and in determining the appropriate scope of subsequent audits. They also 
provide ready means for auditors to become familiar with the 
contractor's operations and any existing audit problems or contractor 
system weaknesses. While summary information on the contractor's 
organization, financial structure and policies may sometimes be included 
in permanent files for smaller contractors, such information on large 
contractors with continuing audit activity is generally maintained in 
the field audit office at the central reference library.
    (B) Items which would logically be included in the permanent file as 
having continuing value in future audit assignments include:
    (1) Internal control questionnaire.
    (2) Internal control review update control log.
    (3) Vulnerability assessment.
    (4) MAARs control log.
    (5) Disclosure statement and revisions in accordance with CAS rules 
and regulations, and
    (6) CAS compliance control schedules and a noncompliance summary 
schedule.
    (ii) Current File. The current file usually consists of working 
papers which have limited use on future assignments. DCAA Forms 7640-19 
a, b, and c are the Agencywide Working Paper Indexes and provide a 
concise summary of items generally found in audit working papers.
    (b) Explanation.
    (1) The preparation of working papers assists the auditor in 
accomplishing the objectives of an audit assignment. Working papers 
serve as the basis for the conclusions in the

[[Page 761]]

audit report; provide a record of the work done for use as 
substantiating data in negotiations, appeals, and litigation; provide 
guidance for subsequent examinations; and serve as a basis for the 
review and evaluation of the work performed.
    (2) Audit working papers are generally prepared at the time audit 
work is performed and are maintained on a current basis. Working papers 
normally reflect the progress of the audit and are designed to ensure 
continuity of the audit effort.
    (3) Working papers should be relevant to the audit assignment and 
not include extraneous pages. Superseded working papers should be 
clearly marked as such and retained as part of the working paper 
package.
    (4) The nature of audit working papers requires that proper control 
and adequate safeguards be maintained at all times. Working papers 
frequently reflect information considered confidential by the contractor 
and are marked ``For Official Use Only'' or are classified for 
government security purposes.

[56 FR 56932, Nov. 7, 1991]



PART 291_DEFENSE NUCLEAR AGENCY (DNA) FREEDOM OF INFORMATION ACT PROGRAM
--Table of Contents




Sec.
291.1 Purpose.
291.2 Applicability.
291.3 Definitions.
291.4 Policy.
291.5 Responsibilities.
291.6 Procedures.
291.7 Administrative instruction.
291.8 Exemptions.
291.9 For official use only (FOUO).

Appendix A to Part 291--Freedom of Information Act Request (DNA Form 
          524)

    Authority: 5 U.S.C. 552.

    Source: 56 FR 9842, Mar. 8, 1991, unless otherwise noted.



Sec. 291.1  Purpose.

    This part establishes policies and procedures for the DNA FOIA 
program.



Sec. 291.2  Applicability.

    This part applies to Headquarters, Defense Nuclear Agency (HQ, DNA), 
Field Command, Defense Nuclear Agency (FCDNA), and the Armed Forces 
Radiobiology Research Institute (AFRRI).



Sec. 291.3  Definitions.

    (a) FOIA Request. A written request for DNA records made by any 
person, including a member of the public (U.S. or foreign citizen), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law that either explicitly or implicitly invokes the 
FOIA (5 U.S.C. 552), 32 CFR part 285, 286, or this part.
    (b) Agency record. (1) The products of data compilation, such as all 
books, papers, maps, and photographs, machine readable materials or 
other documentary materials, regardless of physical form or 
characteristics, made or received by an agency of the United States 
Government under Federal law in connection with the transaction of 
public business and in DNA's possession and control at the time the FOIA 
request is made.
    (2) The following are not included within the definition of the word 
record:
    (i) Objects or articles, such as structures, furniture, vehicles and 
equipment, whatever their historical value, or value as evidence.
    (ii) Administrative tools by which records are created, stored, and 
retrieved, if not created or used as sources of information about 
organizations, policies, functions, decisions, or procedures of a DNA 
organization. Normally, computer software, including source code, object 
code, and listings of source and object codes, regardless of medium are 
not agency records. (This does not include the underlying data which is 
processed and produced by such software and which may in some instances 
be stored with the software.) Exceptions to this position are outlined 
in paragraph (b)(3) of this section.
    (iii) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (iv) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily for 
the convenience of an agency employee, and not distributed to other 
agency employees for their official use.
    (v) Information stored within a computer for which there is no 
existing computer program for retrieval of the requested information.
    (3) In some instances, computer software may have to be treated as 
an

[[Page 762]]

agency record and processed under the FOIA. These situations are rare, 
and shall be treated on a case-by-case basis. Examples of when computer 
software may have to be treated as an agency record are:
    (i) When the data is embedded within the software and cannot be 
extracted without the software. In this situation, both the data and the 
software must be reviewed for release or denial under the FOIA.
    (ii) Where the software itself reveals information about 
organizations, policies, functions, decisions, or procedures of a DNA 
office, such as computer models used to forecast budget outlays, 
calculate retirement system costs, or optimization models on travel 
costs.
    (iii) Refer to Sec. 291.8(b) exemptions 2, 4 and 5 for guidance on 
release determinations of computer software.
    (4) If unaltered publications and processed documents, such as 
regulations, manuals, maps, charts, and related geophysical materials 
are available to the public through an established distribution system 
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do 
not apply and they need not be processed under the FOIA. Normally, 
documents disclosed to the public by publication in the Federal Register 
also require no processing under the FOIA. In such cases, PAO will 
direct the requester to the appropriate source, to obtain the record.
    (d) Initial denial authority (IDA). The Deputy Director (DDIR), DNA, 
has the authority to withhold records requested under the FOIA for one 
or more of the nine categories (set forth Sec. 291.8) of records exempt 
from mandatory disclosure.
    (e) Appellate authority. The Director, DNA.
    (f) Administrative appeal. A request by a member of the general 
public, made under the FOIA, asking the appellate authority of a DoD 
Component (Director, DNA) to reverse an IDA decision to withhold all or 
part of a requested record or to deny a request for a waiver or 
reduction of fees.
    (g) Public interest. Public interest is official information that 
sheds light on an agency's performance of its statutory duties because 
it falls within the statutory purpose of the FOIA in informing citizens 
about what their government is doing. That statutory purpose, however, 
is not fostered by disclosure of information about private citizens that 
is accumulated in various governmental files that reveals little or 
nothing about an agency's or official's own conduct.
    (h) Electronic data. Electronic data are those records and 
information which are created, stored, and retrievable by electronic 
means. This does not include computer software, which is the tool by 
which to create, store, or retrieve electronic data. Refer to paragraphs 
(b) (2) and (3) of this section for a discussion of computer software.



Sec. 291.4  Policy.

    (a) Compliance with the FOIA. DNA personnel are expected to comply 
with the FOIA and this part in both letter and spirit. This strict 
adherence is necessary to provide uniformity in the implementation of 
the DNA FOIA Program and to create conditions that will promote public 
trust. It is DNA policy to fully and completely respond to public 
requests for information concerning its operations and activities, 
consistent with national security objectives.
    (b) Openness with the public. 32 CFR part 286 states that all DoD 
employees shall conduct DoD activities in an open manner consistent with 
the need for security and adherence to other requirements of law and 
regulation. Records that are not specifically exempt from disclosure 
under the Act shall, upon request, be made readily accessible to the 
public in accordance with rules promulgated by competent authority, 
whether or not the Act is invoked.
    (c) Avoidance of procedural obstacles. DNA offices shall ensure that 
procedural matters do not unnecessarily impede a requester from 
obtaining DNA records promptly. PAO shall provide assistance to 
requesters to help them understand and comply with procedures 
established by this Instruction, the 32 CFR part 286 and any 
supplemental regulations published by DoD.
    (d) Prompt action on requests. When a member of the public complies 
with

[[Page 763]]

the procedures established for obtaining DNA records, the request shall 
receive prompt attention; a reply shall be dispatched within 10 working 
days, unless a delay is authorized. When PAO has a significant number of 
requests, e.g., 10 or more, the requests shall be processed in order of 
receipt.

However, this does not preclude PAO from completing action on a request 
which can be easily answered, regardless of its ranking within the order 
of receipt. In addition, PAO may expedite action on a request regardless 
of its ranking within the order of receipt upon a showing of exceptional 
need or urgency. Exceptional need or urgency is determined at the 
discretion of the PAO.
    (e) Use of exemptions. It is DoD/DNA policy to make records publicly 
available, unless they qualify for exemption under one or more of the 
nine exemptions. Components may elect to make a discretionary release; 
however, a discretionary release is generally not appropriate for 
records exempt under exemptions 1, 3, 4, 6 and 7(C). Exemptions 4, 6 and 
7(C) cannot be claimed when the requester is the submitter of the 
information.
    (f) Public domain. Nonexempt records released under the authority of 
this part are considered to be in the public domain. Such records may 
also be made available through the reading room channel to facilitate 
public access. Exempt records released pursuant to this part or other 
statutory or regulatory authority, however, may be considered to be in 
the public domain when their release constitutes a waiver of the FOIA 
exemption. When the release does not constitute such a waiver, such as 
when disclosure is made to a properly constituted advisory committee or 
to a Congressional committee, the released records do not lose their 
exempt status. Also, while authority may exist to disclose records to 
individuals in their official capacity, the provisions of this part 
apply if the same individual seeks the records in a private or personal 
capacity.
    (g) Creating a record. (1) A record must exist and be in the 
possession of and in control of the DNA at the time of the search to be 
considered subject to this part and the FOIA. Mere possession of a 
record does not presume agency control, and such records, or 
identifiable portions thereof, would be referred to the originating 
agency for direct response to the requester. There is no obligation to 
create or compile a record to satisfy a FOIA request. However, a DNA 
employee may compile a new record when so doing would result in a more 
useful response to the requester, or be less burdensome to the agency 
than providing existing records, and the requester does not object. The 
cost of creating or compiling such a record may not be charged to the 
requester unless the fee for creating the record is equal to or less 
than the fee which would be charged for providing the existing record.
    (2) With respect to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when responding to FOIA 
requests for electronic data where creation of a record, programming, or 
particular format are questionable, offices should apply a standard of 
reasonableness. In other words, if the capability exists to respond to 
the request, and the effort would be a business as usual approach, then 
the request should be processed. However, the request need not be 
processed where the capability to respond does not exist without a 
significant expenditure of resources, thus not being a normal business 
as usual approach.
    (h) Description of requested record. (1) Identification of the 
record desired is the responsibility of the member of the public who 
requests a record. The requester must provide a description of the 
desired record that will enable the Government to locate the record with 
a reasonable amount of effort. The Act does not authorize ``fishing 
expeditions.'' When DNA receives a request that does not ``reasonably 
describe'' the requested record, PAO shall notify the requester of the 
defect. The defect should be highlighted in a specificity letter, asking 
the requester to provide the type of information outlined in paragraph 
(h)(2) of this section. DNA is not obligated to act on the request until 
the requester responds to the specificity letter. When practical, PAO 
shall offer assistance to the requester

[[Page 764]]

in identifying the records sought and in reformulating the request to 
reduce the burden on the Agency in complying with the Act.
    (2) The following guidelines are provided to deal with ``fishing 
expedition'' requests and are based on the principle of reasonable 
effort. Descriptive information about a record may be divided into two 
broad categories.
    (i) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (3) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, nonrandom search based on DNA's filing 
arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit inference of the 
Category I elements needed to conduct such a search.
    (4) The following guidelines deal with requests for personal 
records. Ordinarily, when personal identifiers are provided only in 
connection with a request for records concerning the requester, only 
records retrievable by personal identifiers need be searched. Search for 
such records may be conducted under Privacy Act procedures. No record 
may be denied that is releaseable under the FOIA.
    (5) The above guidelines notwithstanding, the decision of an office 
concerning reasonableness of description must be based on knowledge of 
its files. If the description enables office personnel to locate the 
record with reasonable effort, the description is adequate.
    (i) Reasons for not releasing a record. (1) The request is 
transferred to another DoD component, or to another Federal agency.
    (2) The request is withdrawn by the requester.
    (3) The information requested is not a record within the meaning of 
the FOIA and 32 CFR part 286.
    (4) A record has not been described with sufficient particularity to 
enable DNA to locate it by conducting a reasonable search.
    (5) The requester has failed reasonably to comply with procedural 
requirements, including payment of fees, imposed by 32 CFR part 286 or 
this part.
    (6) The DNA determines, through knowledge of its files and 
reasonable search efforts, that it neither controls nor otherwise 
possesses the requested record.
    (7) The record is subject to one or more of the nine exemptions set 
forth in Sec. 291.8, and a significant and legitimate government 
purpose is served by withholding.



Sec. 291.5  Responsibilities.

    (a) The Director, DNA, as appellate authority, is responsible for 
reviewing and making the final decision on FOIA appeals.
    (b) The DDIR, as IDA, is responsible for reviewing all initial 
denials to FOIA requests and has sole responsibility for withholding 
that information.
    (c) The DNA FOIA Officer, who is also the Public Affairs Officer, 
manages and implements the DNA FOIA program. In this regard, the Public 
Affairs Officer serves as the FOIA point-of-contact and liaison between 
DNA and the Office of the Assistant Secretary of Defense (Public 
Affairs) (OASD(PA)), Directorate for Freedom of Information and Security 
Review (DFOI/SR). The Public Affairs Officer is responsible for:
    (1) Advising OASD(PA), DFOI/SR, of any DNA denial of a request for 
records or appeals that may affect another DoD component.
    (2) Ensuring publication of this part in the Federal Register.
    (3) Ensuring that the Command Services Directorate publishes in the 
Federal Register a notice of where, how and by what authority DNA 
performs its functions.
    (4) Ensuring that the Command Services Directorate, publishes an 
index of DNA instructions in the Federal Register.
    (5) Coordinating all FOIA actions, except routine, interim replies 
indicating

[[Page 765]]

initial receipt of a FOIA request through the appropriate DNA offices 
and the DNA General Counsel (GC).
    (6) Forwarding all fees collected under the FOIA to the HQ, DNA, 
Finance and Accounting Officer for further processing.
    (7) Coordinating action on FOIA requests that involve other 
government organizations (e.g., when DNA is not the original classifier 
for a classified document) with those organizations.
    (8) Ensuring FOIA briefings are presented annually for DNA 
personnel.
    (9) Submitting an annual report to OASD(PA), DFOI/SR, in accordance 
with the requirements of DoD Directive 5400.11.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (d) The Commander, FCDNA, is responsible for determining, based on 
current directives and instruction, what information in FCDNA custody 
may be released to FOIA requesters. (This responsibility may be 
delegated.) The Commander, FCDNA, is responsible for designating a 
representative to process FOIA requests. The Commander has the authority 
to release documents in response to the FOIA. When FCDNA releases 
information under the FOIA, it will forward a copy of the request, the 
response and the appropriate cost sheet to HQ, DNA, ATTN: PAO (FOIA). 
FCDNA will not deny requests for information under the FOIA; instead, it 
will forward to HQ, DNA, PAO a recommendation and justification for 
denying the FOIA request.
    (e) The Director, AFRRI, is responsible for designating a 
representative to process FOIA requests and to forward them to HQ, DNA, 
(PAO) for coordination and preparation of a final response.
    (f) The DNA GC shall coordinate on all DNA FOIA response except 
routine interim letters which acknowledge receipt of the FOIA request. 
That office shall also ensure uniformity in the legal position and 
interpretation by DNA of the FOIA, and coordinate with the DoD GC, as 
necessary.
    (g) The HQ, DNA, Finance and Accounting Officer will ensure that 
fees collected under the FOIA are forwarded to the Finance and 
Accounting Office, U.S. Army, to be submitted to the Treasury of the 
United States.
    (h) HQ, DNA, Assistant Director for Intelligence and Security, 
Classification Management Division (ISCM), will conduct security reviews 
of classified documents requested under the FOIA. ISCM will determine 
whether the document.
    (1) Contains information that meets requirements for withholding 
under Exemption 1 Executive Order 12356.
    (2) Has information that meets requirements for withholding under 
Exemption 3, to include Restricted Data and Formerly Restricted Data, 42 
U.S.C. 2162.
    (3) Has information that may be declassified or sanitized. ISCM is 
also responsible for sanitizing DNA classified information from 
documents requested under the FOIA (refer to Sec. 291.6(b)(5)). In 
addition, ISCM is responsible for advising the Assistant Director for 
Technical Information (CSTI) to notify the appropriate authorities when 
information has been reclassified as a result of a DNA FOIA review.
    (i) HQ, DNA, CSLE will, upon request, ensure that photocopies are 
made of 50-page or larger documents being processed under the FOIA. 
(Copies are required only when documents are not available from other 
sources.)
    (j) CSTI, Technical Library Division (TITL), will, upon notification 
from PAO that a document has been cleared for public release under the 
FOIA, retain the marked up document in its files, annotate the FOIA case 
number in the computerized data base and ensure that the document is 
made available to the public through the National Technical Information 
Service (NTIS).
    (k) Commander, FCDNA; Director, AFRRI; and directors and chiefs of 
staff elements at HQ, DNA, will ensure that personnel are familiar with 
the procedures and contents of this part prior to acting on FOIA 
requests. They will also make sure that FOIA actions forwarded to their 
offices for processing are closely monitored to ensure accountability 
and that their input to PAO is provided in a timely manner and in 
accordance with this part. (Refer to Sec. 291.7(b)(2)). If the 
office(s)

[[Page 766]]

cannot meet the FOIA suspense, they must request an extension. In 
addition, they will ensure that, upon request by PAO, appropriate 
technical personnel sanitize information such as unclassified technical 
data, that is determined to be exempt from disclosure under the FOIA. 
(Refer to Sec. 291.7(b)(5)).



Sec. 291.6  Procedures.

    (a) If HQ, DNA personnel receive a FOIA request that has not been 
logged and processed through PAO, they will immediately handcarry the 
request to PAO. TDNM and AFRRI personnel will forward all FOIA requests 
to HQ, DNA, Attn: PAO. FCDNA will adhere to paragraph 6d and FCDNA 
Supplement to DNA Instruction 5400.7C.\2\
---------------------------------------------------------------------------

    \2\ Copies can be obtained from Defense Nuclear Agency PAO or SSAB, 
Defense Nuclear Agency, 6801 Telegraph Road, Alexandria, VA 22310-3398.
---------------------------------------------------------------------------

    (b) When a FOIA request is received by PAO, HQ, DNA, the following 
procedures apply:
    (1) The request will be date stamped, reviewed to determine if it 
meets the requirements of 5 U.S.C. 552, logged in, assigned an action 
number, suspensed, and attached to a FOIA cover sheet with instructions 
for forwarding to the appropriate office. A copy of DD Form 2086 or DD 
Form 2086-1 will also be attached to the FOIA request.
    (2) A copy of the request will be handcarried by PAO to the 
designated HQ, DNA, action office(s) or forwarded to AFRRI or FCDNA, as 
appropriate. The office or component providing input for the FOIA 
request must keep track of the request and meet the PAO suspense. The 
HQ, DNA input, or negative response, if there are no records available, 
will be handcarried to PAO. AFRRI will send the recommended response in 
daily distribution. FCDNA will telefax the proposed response in addition 
to mailing the original. All FOIA actions must include a completed DD 
Form 2086 or 2086-1. Each office acting on FOIA requests will indicate 
on the form the search, review/excise and coordination time spent 
processing the FOIA action, and provide the number of pages copied.
    (3) The DNA PAO will prepare the response to the requester and 
coordinate it with the offices that provided input, the GC, and if 
appropriate, ISCM, the IDA, the Director, DNA, OASD(PA), and outside 
agencies, if involved. The PAO will maintain files of all FOIA actions 
per DNA Instruction 5015.4B.
    (4) If a request is received by a DNA office which does not have 
records responsive but office personnel believe another office would 
have the records requested, they must contact the other office to 
confirm the existence of the documents, forward the FOIA action to that 
office and notify PAO.
    (5) FOIAs involving classified information. When ISCM or contractor 
security reviewers receive a classified document from PAO for processing 
under the FOIA, they will conduct a security review to determine if the 
document may be sanitized or declassified. Most DNA documents requested 
under the FOIA are queued on a first-come, first-served basis and shall 
be reviewed in that order. When security reviewers determine that part 
or all of the information in a classified document may be sanitized or 
declassified, they will ensure that the appropriate copies are ordered 
from the Defense Technical Information Center (DTIC). The DTIC copy will 
be marked up during review. Cases not placed in queue will be suspensed 
by PAO. They may include documents with less than 10 pages or documents 
under suspense from other organizations which require a DNA review. All 
DNA documents reviewed will be marked with a special pen that does not 
permit photocopying of the classified portions. Security review must 
include a detailed response providing the appropriate exemption(s) and 
justification for withholding.

When the Field Command Security Division (FCSS) receives a classified 
document for processing under the FOIA, they will conduct a security 
review to determine if the document may be sanitized or declassified. 
When FCSS determines that part or all of the information in a classified 
document may be sanitized or declassified, FCSS will make a copy which 
will be marked up during review. Upon completion of its review, FCSS 
will provide the marked up document and a sanitized version of the 
document to PAO. FCSS review

[[Page 767]]

must include a detailed response providing the appropriate exemption(s) 
and justification for withholding. When ISCM/FCSS completes its review, 
ISCM/FCSS will forward the master copy to the appropriate technical 
office(s) for review. That office will determine whether the remaining 
unclassified information is releaseable and provide its response to 
ISCM/FCSS. If the office recommends that part or all of the information 
be withheld, then it must forward a detailed response providing the 
appropriate exemption(s) and justification for withholding. The 
technical office will return documents with results of their review to 
ISCM. ISCM will forward the results of both reviews to PAO for further 
processing. If either ISCM/FCSS or the DNA office reviewing the action 
recommends additional review by another agency, they will provide the 
full name and address of that agency with a technical point-of-contact, 
if known. PAO will forward the action to that organization for further 
review. When PAO receives that organization's review determination, it 
will forward the results to ISCM/FCSS. After all reviews are completed, 
ISCM/FCSS will sanitize the document and handcarry (FCSS will forward) 
the sanitized as well as the marked up copy to PAO for final processing.
    (6) FOIAs involving unclassified information. The appropriate 
technical office(s) will review unclassified documents for release under 
the FOIA. If the office(s) determines that part or all of the document 
should be withheld, it must provide PAO a written recommendation with 
the appropriate exemption(s) (Sec. 291.8) and detailed reasons for 
withholding the information. Upon PAO request, the technical office(s) 
will sanitize the unclassified information that is being withheld. 
Sanitization will be done on a photocopy of the document or on a 
document that has been obtained from DTIC.



Sec. 291.7  Administrative instruction.

    (a) FOIA requesters shall clearly mark their requests as such, both 
on the envelope and in the body of the letter. Identification of the 
record desired is the responsibility of the FOIA requester. The 
requester must provide a description of the desired record that enables 
DNA to locate it with a reasonable amount of effort. The Act does not 
authorize ``fishing expeditions.'' FOIA requests should be sent to the 
following address: Public Affairs Officer, Defense Nuclear Agency, 
Attention: FOIA, 6801 Telegraph Road, Alexandria, VA 22310-3398. 
Requester failure to comply with this section shall not be sole grounds 
of denial for requested information.
    (b) FOIA appeals must be clearly marked as such, both on the 
envelope and in the body of the letter. Persons appealing DNA denial 
letters should include a copy of the denial letter, the case number, a 
statement of the relief sought and the grounds upon which it is brought. 
Appeals should be sent to the following address: Director, Defense 
Nuclear Agency, 6801 Telegraph Road, Alexandria, VA 22310-3398.
    (c) The time limitations for responding to legitimate FOIA requests 
are:
    (1) Determinations to release, deny or transfer a record shall be 
made and the decision reported to the requester within 10 working days 
after the request is received in PAO.
    (2) If additional time is needed to respond to a request, the 
requester will be notified within the 10-day period. When PAO has a 
significant number of requests, e.g., 10 or more, the requests shall be 
processed in order of receipt. However, this does not preclude PAO from 
completing action on a request which can be easily answered, regardless 
of its ranking within the order of receipt. PAO may expedite action on a 
request regardless of its ranking within the order of receipt upon a 
showing of exceptional need or urgency. Exceptional need or urgency is 
determined at the discretion of the Public Affairs Officer.
    (3) If a request for a record is denied and the requester appeals 
the decision of the IDA, the requester should file the appeal so that it 
reaches DNA no later than 60 calendar days after the date of the initial 
denial letter. At the conclusion of this period, the case may be 
considered closed; however, such closure does not preclude the requester 
from filing litigation. In cases where the requester is provided several 
incremental determinations for a single request, the time for the appeal 
shall not

[[Page 768]]

begin until the requester receives the last such notification. A final 
determination on the appeal normally shall be made within 20 working 
days after receipt. If additional time is needed due to unusual 
circumstances, the final decision may be delayed for the number of 
working days (not to exceed 10), that were not utilized as additional 
time for responding to the initial request. If an appeal is denied, the 
Director, DNA, will notify the requester of the right to judicial review 
of the decision. Appeal procedures also apply to the disapproval of a 
request for waiver or reduction of fees.
    (d) If DNA denies the requested document in whole or in part, the 
response must include detailed rationale for withholding information and 
the specific exemption that applies so the requester can make a decision 
concerning appeal. When the initial denial is based in whole or in part 
on a security classification, the explanation should include a summary 
of the applicable criteria for classification, as well as an 
explanation, to the extent reasonably feasible, of how those criteria 
apply to the particular record in question. Denial letters must also 
include the name and title of the IDA, and cite the name and address of 
the Director, DNA, as the appellate authority.
    (e) All final responses will address the status of fees collectible 
under the FOIA. Fees of $15 or less will be waived, regardless of 
category of requester.
    (f) A formal reading room for the public, as defined in 32 CFR part 
286, does not exist at DNA (HQ, FCDNA or AFRRI) because of security 
requirements. However, the PAO will arrange for a suitable location and 
escort, if required, for members of the public to review DNA documents 
released under the FOIA. In addition, most reports released under the 
FOIA are sent to the National Technical Information Service (NTIS).



Sec. 291.8  Exemptions.

    (a) General. Records that meet the exemption criteria listed in 
paragraph (b) below may be withheld from public disclosure and will not 
be published in the Federal Register, made available in a library, 
reading room, or provided in response to a FOIA request.
    (b) FOIA exemptions. The following types of records may be withheld 
in whole or in part from public disclosure under the FOIA, unless 
otherwise prescribed by law. A discretionary release (see also Sec. 
291.4(e)) to one requester may preclude the withholding of the same 
record under a FOIA exemption if the record is subsequently requested by 
someone else. In applying exemptions, the identity of the requester and 
the purpose for which the record is sought are irrelevant with the 
exception that an exemption may not be invoked where the particular 
interest to be protected is the requester's interest.
    (1) Number 1. Those properly and currently classified in the 
interest of national defense or foreign policy, as specifically 
authorized under the criteria established by executive order and 
implemented by regulations, such as DoD 5200.1-R.\3\ Although material 
is not classified at the time of the FOIA request, a classification 
review may be undertaken to determine whether the information should be 
classified. The procedures in DoD 5200.1-R, section 2-204f., apply. In 
addition, this exemption shall be invoked when the following situations 
are apparent:
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 291.5(c)(9).
---------------------------------------------------------------------------

    (i) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, DNA shall 
neither confirm nor deny the existence or nonexistence of the record 
being requested. A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no record'' response when 
a record does not exist, and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose national security information.
    (ii) Information that concerns one or more of the classification 
categories established by executive order and DoD 5200.1-R shall be 
classified if its unauthorized disclosure, either by itself or in the 
context of other information, reasonably could be expected to cause 
damage to the national security.

[[Page 769]]

    (2) Number 2. Those related solely to the internal personnel rules 
and practices of DNA. This exemption has two profiles, high b2 and low 
b2.
    (i) Records qualifying under high b2 are those containing or 
constituting statutes, rules, regulations, orders, manuals, directives, 
and instructions, the release of which would allow circumvention of 
these records, thereby substantially hindering the effective performance 
of a significant function of the DNA. Examples include:
    (A) Those operating rules, guidelines and manuals for DNA 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DNA office to fulfill a legal requirement.
    (B) Personnel and other administration matters, such as examination 
questions and answers used in training courses or in the determination 
of the qualifications of candidates for employment, entrance on duty, 
advancement, or promotion.
    (C) Computer software meeting the standards of paragraph 
291.3(b)(2)(iii), the release of which would allow circumvention of a 
statute or DoD rules, regulations, orders, manuals, directives, or 
instructions. In this situation, the use of the software must be clearly 
examined to ensure a circumvention possibility exists.
    (ii) Records qualifying under the low b2 profile are those that are 
trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose the records. Examples include: Rules of personnel's use of 
parking facilities or regulation of lunch hours, statements of policy as 
to sick leave, and trivial administrative data such as file numbers, 
mail routing stamps, initials, data processing notations, brief 
references to previous communications, and other like administrative 
markings.
    (3) Number 3. Those containing matters that a statute specifically 
exempts from disclosure by terms that permit no discretion on the issue, 
or in accordance with criteria established by that statute for 
withholding or referring to particular types of matters to be withheld. 
Examples of statutes are:
    (i) National Security Agency Information Exemption, Public Law 86-
36, section 6.
    (ii) Patent Secrecy, 35 U.S.C. 181-188. Any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (iii) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
    (iv) Communication Intelligence, 18 U.S.C. 798.
    (v) Authority to Withhold from Public Disclosure Certain Technical 
Data, 10 U.S.C. 130 and DoD Directive 5230.25.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 291.5(c)(9).
---------------------------------------------------------------------------

    (vi) Confidentiality of Medical Quality Records: Qualified Immunity 
Participants, 10 U.S.C. 1102.
    (vii) Physical Protection of Special Nuclear Material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128.
    (viii) Protection of Intelligence Sources and Methods, 50 U.S.C. 403 
(d)(3).
    (4) Number 4. Those containing trade secrets or commercial or 
financial information that DNA receives from a person or organization 
outside the government with the understanding that the information or 
record will be retained on a privileged or confidential basis in 
accordance with the customary handling of such records. Records within 
the exemption must contain trade secrets, or commercial or financial 
records, the disclosure of which is likely to cause substantial harm to 
the competitive position of the source providing the information; impair 
the Government's ability to obtain necessary information in the future; 
or impair some other legitimate government interest. Examples include:
    (i) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. See 32 CFR part 
286h, ``Release of Acquisition-Related Information.''

[[Page 770]]

    (ii) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses and 
expenditures, if offered and received in confidence from a contractor or 
potential contractor.
    (iii) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (iv) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees within 
the Department of Defense.
    (v) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information, submitted 
with an application for a research grant, or with a report, while 
research is in progress.
    (vi) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, and technical or 
scientific data developed in part with Federal funds and in part at 
private expense, wherein the contractor or subcontractor has retained 
legitimate proprietary interests in such data in accordance with title 
10, U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement 
(DFARS), subpart 27.4. Technical data developed exclusively with Federal 
funds may be withheld under Exemption Number 3 if it meets the criteria 
of 10 U.S.C. 130 and DoD Directive 5230.25 (refer to paragraph 
(b)(3)(v)).
    (vii) Computer software meeting the conditions of section 4 (b)(3), 
which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), 
the disclosure of which would have an adverse impact on the potential 
market value of a copyrighted work.
    (5) Number 5. Except as provided in paragraphs (b)(5)(i) through (v) 
of this section, internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters, that are reflected in 
records pertaining to the decisionmaking process of any agency, whether 
within or among agencies (as defined in 5 U.S.C. 552(e)) or within or 
among DoD/DNA offices. Also exempted are records pertaining to the 
attorney-client privilege and the attorney work-product privilege.
    (i) Examples include:
    (A) The nonfactual portions of staff papers, to include after-action 
reports and situation reports containing staff evaluations, advice, 
opinions or suggestions.
    (B) Advice, suggestions, or evaluations prepared on behalf of the 
DNA by individual consultants or by boards, committees, councils, 
groups, panels, conferences, commissions, task forces, or other similar 
groups that are formed for the purpose of obtaining advice and 
recommendations.
    (C) Those nonfactual portions of evaluations by DNA personnel of 
contractors and their products.
    (D) Information of a speculative, tentative, or evaluative nature or 
such matters as proposed plans to procure, lease or otherwise acquire 
and dispose of materials, real estate, facilities or functions, when 
such information would provide undue or unfair competitive advantage to 
private personal interests or would impede legitimate government 
functions.
    (E) Trade secret or other confidential research, development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interests.
    (F) Records that are exchanged among agency personnel as part of the 
preparation for anticipated administrative proceedings by DNA, or 
litigation before any federal, state, or military court, as well as 
records that qualify for the attorney-client privilege.
    (G) Those portions of official reports of inspection, reports of the 
Inspector General, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of DNA when these records have traditionally been treated by 
the courts as privileged against disclosure in litigation.
    (H) Computer software meeting the standards of paragraph 
291.3(b)(2)(iii), which is deliberative in nature, the disclosure of 
which would inhibit or chill

[[Page 771]]

the decision-making process. In this situation, the use of software must 
be closely examined to ensure its deliberative nature.
    (I) Planning, programming, and budgetary information which is 
involved in the defense planning and resource allocation process.
    (ii) If any such intra- or inter-agency record or reasonably 
segregable portion of such record hypothetically would be made available 
routinely through the ``discovery process'' in the course of litigation 
with DNA, i.e., the process by which litigants obtain information from 
each other that is relevant to the issues in trial or hearing, then it 
should not be withheld from the general public even though ``discovery'' 
has not been sought in actual litigation. If, however, the information 
hypothetically would only be made available through the discovery 
process by special order of the court based on the particular needs of a 
litigant, balanced against the interests of the agency in maintaining 
its confidentiality, then the record or document need not be made 
available under this part. Consult with legal counsel to determine 
whether exemption 5 material would be routinely made available through 
the ``discovery process''.
    (iii) Intra- or inter-agency memoranda or letters that are factual, 
or those reasonably segregable portions that are factual, are routinely 
made available through ``discovery,'' and shall be made available to a 
requester, unless the factual material is otherwise exempt from release, 
inextricably intertwined with the exempt information, so fragmented as 
to be uninformative, or so redundant of information already available to 
the requester as to provide no new substantive information.
    (iv) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making process.
    (v) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporated by reference in the record containing 
the decision.
    (6) Number 6. Information in personnel and medical files, as well as 
similar personal information in other files, that, if disclosed to the 
requester would result in a clearly unwarranted invasion of personal 
privacy. Release of information about an individual contained in a 
Privacy Act System of Records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties.
    (i) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (A) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information.
    (B) Files containing reports, records, and other material pertaining 
to personnel matters in which administrative action, including 
disciplinary action, may be taken.
    (ii) Home addresses are normally not releasable without the consent 
of the individuals concerned. In addition, lists of DoD military and 
civilian personnel's names and duty addresses who are assigned to units 
that are sensitive, routinely deployable, or stationed in foreign 
territories can constitute a clearly unwarranted invasion of personal 
privacy.
    (A) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at some place 
and time. If personal information is not freely available from sources 
other than the Federal Government, a privacy interest exists in its 
nondisclosure. The fact that the Federal Government expended funds to 
prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA

[[Page 772]]

to obtain these records indicates the information is not freely 
available.
    (B) Published telephone directories, organizational charts, rosters 
and similar materials for personnel assigned to units that are 
sensitive, routinely deployable, or stationed in foreign territories are 
withholdable under this exemption.
    (iii) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person, but it may be used to protect the privacy 
of the deceased person's family.
    (iv) Individuals' personnel, medical, or similar file may be 
withheld from them or their designated legal representative only to the 
extent consistent with DoD Directive 5400.11.
    (v) A clearly unwarranted invasion of the privacy of the persons 
identified in a personnel, medical or similar record may constitute a 
basis for deleting those reasonably segregable portions of that record, 
even when providing it to the subject of the record. When withholding 
personal information from the subject of the record, legal counsel 
should first be consulted.
    (7) Number 7. Records or information compiled for law enforcement 
purposes; i.e., civil, criminal, or military law, including the 
implementation of executive orders or regulations issued pursuant to 
law. This exemption may be invoked to prevent disclosure of documents 
not originally created for, but later gathered for law enforcement 
purposes.
    (i) This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (A) Could reasonably be expected to interfere with enforcement 
proceedings.
    (B) Would deprive a person of the right to a fair trial or to an 
impartial adjudication.
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record.
    (1) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, DNA 
shall neither confirm nor deny the existence or nonexistence of the 
record being requested.
    (2) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (3) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester with a 
waiver of his or her privacy rights; or the person whose personal 
privacy is in jeopardy is deceased, and DNA is aware of that fact.
    (D) Could reasonably be expected to disclose the identity of a 
confidential source including a source within DNA, a state, local or 
foreign agency or authority, or any private institution which furnishes 
the information on a confidential basis.
    (E) Could disclose confidential information furnished from a 
confidential source and obtained by a criminal law enforcement authority 
in a criminal investigation or by an agency conducting a lawful national 
security intelligence investigation.
    (F) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law.
    (G) Could reasonably be expected to endanger the life, or the 
physical safety of any individual.
    (ii) Examples include:
    (A) Statements of witnesses and other material developed during the 
course of the investigation and all materials prepared in connection 
with related government litigation or adjudicative proceedings.
    (B) The identity of firms or individuals being investigated for 
alleged irregularities involving contracting

[[Page 773]]

with DNA when no indictment has been obtained nor any civil action filed 
against them by the United States.
    (C) Information obtained in confidence, expressed or implied, in the 
course of a criminal investigation by a criminal law enforcement agency 
or office within DNA, or a lawful national security intelligence 
investigation conducted by an authorized agency or office within DNA. 
National security intelligence investigations include background 
security investigations and those investigations conducted for the 
purpose of obtaining affirmative or counterintelligence information.
    (iii) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500 is 
not diminished.
    (iv) When the subject of an investigative record is the requester of 
the record, it may be withheld only as authorized by DoD Directive 
5400.11.
    (v) Exclusions. Excluded from the previous exemptions are the 
following two situations applicable to the Department of Defense.
    (A) Whenever a request is made which involves access to records or 
information compiled for law enforcement purposes and the investigation 
or proceedings involves a possible violation or criminal law where there 
is reason to believe that the subject of the investigation or 
proceedings is unaware of its pendency, and the disclosure of the 
existence of the records could reasonably be expected to interfere with 
enforcement proceedings. Components may, during only such times as that 
circumstance continues, treat the records or information as not subject 
to the FOIA. In such situation, the response to the requester will state 
that no records were found.
    (B) Whenever informant records maintained by a criminal law 
enforcement organization within a DoD component under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the Component may treat the 
records as not subject to the FOIA, unless the informant's status as an 
informant has been officially confirmed. If it is determined that the 
records are not subject to exemption 7, the response to the requester 
will state that no records were found.
    (8) Number 8. Those contained in or related to examination, 
operation or condition reports prepared by, on behalf of, or for the use 
of any agency responsible for the regulation or supervision of financial 
institutions.
    (9) Number 9. Those containing geological and geophysical 
information and data (including maps) concerning wells.



Sec. 291.9  For official use only (FOUO).

    Information that has not been given a security classification 
pursuant to the criteria of an Executive Order, but which may be 
withheld from the public for one or more of the reasons cited in FOIA 
exemptions 2 through 9 shall be considered as being for official use 
only. No other material shall be considered or marked ``For Official Use 
Only'' (FOUO) and FOUO is not authorized as an anemic form of 
classification to protect national security interests. See DNA 
Instruction 5230.2A \5\ for additional information regarding FOUO 
policy.
---------------------------------------------------------------------------

    \5\ See footnote 2, to Sec. 291.6(a)
---------------------------------------------------------------------------

    (a) Prior FOUO application. The prior application of FOUO markings 
is not a conclusive basis for withholding a record that is requested 
under the FOIA. When such a record is requested, the information in it 
shall be evaluated to determine whether, under current circumstances, 
FOIA exemptions apply in withholding the record or portions of it. If 
any exemption or exemptions apply or applies, it may nonetheless be 
released when it is determined that no governmental interest will be 
jeopardized by its release.
    (b) Historical papers. Records, such as notes, working papers, and 
drafts retained as historical evidence of DNA actions enjoy no special 
status apart from the exemptions under the FOIA.
    (c) Time to mark records. The marking of records at the time of 
their creation provides notice of FOUO content and facilitates review 
when a record is requested under the FOIA. Records requested under the 
FOIA that do not bear such markings, shall not be assumed to be 
releaseable without examination for the presence of information

[[Page 774]]

that requires continued protection and qualifies as exempt from public 
release.
    (d) Distribution statement. Information in a technical document that 
requires a distribution statement pursuant to DNA Instruction 5230.24A 
shall bear that statement and may be marked FOUO, as appropriate.
    (e) Termination. The originator or other competent authority, e.g., 
initial denial and appellate authorities, shall terminate ``For Official 
Use Only'' markings or status when circumstances indicate that the 
information no longer requires protection from public disclosure. When 
FOUO status is terminated, all known holders shall be notified, to the 
extent practical. Upon notification, holders shall efface or remove the 
``For Official Use Only'' markings, but records in file or storage need 
not be retrieved solely for that purpose.
    (f) Disposal. (1) Nonrecord copies of FOUO materials may be 
destroyed by tearing each copy into pieces to preclude reconstructing, 
and placing them in regular trash containers. When local circumstances 
or experience indicates that this destruction method is not sufficiently 
protective of FOUO information, local authorities may direct other 
methods but must give due consideration to the additional expense 
balanced against the degree of sensitivity of the type of FOUO 
information contained in the records.
    (2) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 
chapter 33, as implemented by DNA instructions concerning records 
disposal.
    (g) Unauthorized disclosure. The unauthorized disclosure of FOUO 
records does not constitute an unauthorized disclosure of DNA 
information classified for security purposes. Appropriate administrative 
action shall be taken, however, to fix responsibility for unauthorized 
disclosure whenever feasible, and appropriate disciplinary action shall 
be taken against those responsible. Unauthorized disclosure of FOUO 
information that is protected by the Privacy Act, may also result in 
civil and criminal sanctions against responsible persons. The DNA office 
that originated the FOUO information shall be informed of its 
unauthorized disclosure.

  Appendix A to Part 291--Freedom of Information Act Request (DNA Form 
                                  524)

            Suspense Item--Freedom of Information Act Request

Date____________________________________________________________________
Information Required in PAO NLT_________________________________________
FOIA Case No.___________________________________________________________
To:_____________________________________________________________________
Special Instructions:___________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

    Please conduct a search within your organization to determine if 
there is information/documents responsive to the attached FOIA request.
    If you recommend withholding information from the documents 
requested, please refer to the FOIA exemptions listed on the reverse.
    If this request is for a technical proposal, please provide the name 
and address for the contact person at the company which was awarded the 
contract and the name and office symbol to the TM.
    Record time spent on this request and the number of pages copied on 
the enclosed DD Form 2086.
    If you believe other DNA offices should be involved in processing 
this request, please advise PAO ASAP.
    If you have any questions call PAO, 57095 or 57306. Do not place 
this FOIA action in distribution.

________________________________________________________________________

    Enclosures:
    DNA Form 524 (28 June 90) Previous Editions Obsolete.

                        Explanation of Exemptions

                 Freedom of Information Act (5 USC 552)

    (b)(1) Applies to information which is currently and properly 
classified pursuant to an Executive Order in the interest of national 
defense or foreign policy. (See Executive Order 12356, DoD Regulation 
5200.1-R and DNA Instruction 5400-7C.)
    (b)(2) Applies to information which pertains solely to the internal 
rules and practices of the Agency; this exemption has two profiles, 
``high'' and ``low.'' The ``high'' profile permits withholding of a 
document which, if released, would allow circumvention of an agency 
rule, policy, or statute, thereby impeding the agency in the conduct of 
its mission. The ``low'' profile permits

[[Page 775]]

withholding if there is no public interest in the document, and it would 
be an administrative burden to process the request.
    (b)(3) Applies to information specifically exempted by a statute 
establishing particular criteria for withholding. The language of the 
statute must clearly state that the information will not be disclosed.
    (b)(4) Applies to information such as trade secrets and commercial 
or financial information obtained from a company on a privileged or 
confidential basis which, if released, would result in competitive harm 
to the company.
    (b)(5) Applies to inter- and intra-agency memoranda which are 
deliberative in nature; this exemption is appropriate for internal 
documents which are part of the decision making process, and contain 
subjective evaluations, opinions and recommendations.
    (b)(6) Applies to information release of which could reasonably be 
expected to constitute a clearly unwarranted invasion of the personal 
privacy of individuals; and
    (b)(7) Applies to records or information compiled for law 
enforcement purposes that (A) could reasonably be expected to interfere 
with law enforcement proceedings, (B) would deprive a person of a right 
to a fair trial or impartial adjudication, (C) could reasonably be 
expected to constitute an unwarranted invasion of the personal privacy 
of others, (D) disclose the identity of a confidential source, (E) 
disclose investigative techniques and procedures, or (F) could 
reasonably be expected to endanger the life or physical safety or any 
individual.
    (b)(8) Permits the withholding of matters contained in, or related 
to, examination, operating or conditions reports prepared by, on behalf 
of, or for the use of, an agency responsible for the regulation and 
supervision of financial institutions.
    (b)(9) Permits the withholding of geological information and data 
including maps, concerning wells.



PART 292_DEFENSE INTELLIGENCE AGENCY (DIA) FREEDOM OF INFORMATION ACT
--Table of Contents




Sec.
292.1 Purpose.
292.2 Applicability.
292.3 Basic policy.
292.4 Specific policy.
292.5 How the public submits requests for records.
292.6 FOIA exemptions.
292.7 Filing an appeal for refusal to make records available.
292.8 Responsibilities.

Appendix A to Part 292--Uniform Agency Fees for Search and Duplication 
          Under the Freedom of Information Act (as Amended)

    Authority: 5 U.S.C. 552.

    Source: 57 FR 38775, Aug. 27, 1992, unless otherwise noted.



Sec. 292.1  Purpose.

    This document implements the ``Freedom of Information Act (FOIA),'' 
5 U.S.C., as amended, with the Defense Intelligence Agency (DIA) and 
outlines policy governing release of records to the public.



Sec. 292.2  Applicability.

    This part applies to all DIA elements, and governs the public 
release of records of these elements.



Sec. 292.3  Basic policy.

    (a) Upon receipt of a written request, the DIA will release to the 
public, records concerning its operations and activities which are 
rightfully public information. Generally, information, other than that 
exempt in Sec. 292.6, will be provided to the public. The following 
policy will be followed in the conduct of this program.
    (1) The provisions of the FOIA, as implemented by 32 CFR part 286 
and this part, will be supported in both letter and spirit.
    (2) Requested records will be withheld only when a significant and 
legitimate governmental purpose is served by withholding them. Records 
which require protection against unauthorized release in the interest of 
the national defense or foreign relations of the United States will not 
be provided.
    (3) Official requests from Members of Congress, acting in their 
official capacity, will be governed by DoD Directive 5400.4,\1\ (see DoD 
5400.7-R,\2\ paragraph 5-103); from the General Accounting Office by DoD 
Directive 7650.1; \3\ and from private parties, and officials of state 
or local governments by DoD 5400.7-R, paragraphs 5-101 and 102.
---------------------------------------------------------------------------

    \1\ Copies may be obtained at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 292.3(a)(3).
    \3\ See footnote 1 to Sec. 292.3(a)(3).
---------------------------------------------------------------------------

    (4) Records will not be withheld solely because their release might 
result in

[[Page 776]]

criticism of the Department of Defense or this Agency.
    (5) The applicability of the FOIA depends on the existence of an 
``identifiable record'' (5 U.S.C. 552(a)(3)). Accordingly, if the DIA 
has no record containing information requested by a member of the 
public, it is under no obligation to compile information to create or 
obtain such a record.
    (6) The mission of the DIA does not encompass regulatory or 
decision-making matters in the sense of a public use agency; therefore, 
extensive reading room material for the general public is not available.
    (7) Pursuant to 5 U.S.C. 552 (a)(4)(A) fees may apply with regard to 
services rendered the public under the Freedom of Information Act (See 
appendix A to this part). With regard to fees, the specific guidance of 
DoD, as set forth in DoD 5400.7-R will be followed.
    (b) This basic policy is subject to the exemptions recognized in 5 
U.S.C. 552 (b) and discussed in section 292.6.



Sec. 292.4  Specific policy.

    (a) Definition of a Record. The products of data compilation, such 
as all books, papers, maps, and photographs, machine readable materials 
or other documentary materials, regardless of physical form or 
characteristics, made or received by the DIA in connection with the 
transaction of public business and in the DIA's possession and control 
at the time the FOIA request is made.
    (b) The following are not included within the definition of the word 
``record:''
    (1) Objects or articles, such as structures, furniture, paintings, 
sculptures, three-dimensional models, vehicles and equipment, whatever 
their historical value or value as evidence.
    (2) Administrative tools by which records are created, stored, and 
retrieved, if not created or used as sources of information about 
organizations, policies, functions, decisions, or procedures of a DoD 
Component. Normally, computer software, including source code, object 
code, and listings of source and object codes, regardless of medium are 
not agency records. (This does not include the underlying data which is 
processed and produced by such software and which may in some instances 
be stored with the software.) Exceptions to this position are outlined 
in paragraph (b)(2)(i) of this section.
    (i) In some instances, computer software may have to be treated as 
an agency record and processed under the FOIA. These situations are 
rare, and shall be treated on a case-by-case basis. Examples of when 
computer software may have to be treated as an agency record are:
    (A) When the data are embedded within the software and cannot be 
extracted without the software. In this situation, both the data and the 
software must be reviewed for release or denial under the FOIA.
    (B) When the software itself reveals information about 
organizations, policies, functions, decisions, or procedures of the 
Agency, such as computer models used to forecast budget outlays, 
calculate system costs, or optimization models on travel costs.
    (3) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (4) Personal notes of an individual not subject to agency creation 
or retention requirements, created and maintained primarily for the 
convenience of an agency employee, and not distributed to other agency 
employees for their official use.
    (5) Information stored within a computer for which there is no 
existing computer program or printout for retrieval of the requested 
information.
    (c) The prior application of FOR OFFICIAL USE ONLY (FOUO) markings 
is not a conclusive basis for withholding a record that is requested 
under the FOIA. When such a record is requested, the information in it 
will be evaluated to determine whether, under current circumstances, 
FOIA exemptions apply and whether a significant and legitimate 
Governmental purpose is served by withholding the record or portions of 
it.
    (d) A record must exist and be in the possession or control of the 
DIA at the time of the request to be considered subject to this 
regulation. There is no obligation to create, compile, or obtain a 
record to satisfy an FOIA request.

[[Page 777]]

    (e) Identification of the Record. (1) Identification of the record 
desired is the responsibility of the member of the public who requests a 
record. The requester must provide a description of the desired record 
that enables the DIA to locate the record with a reasonable amount of 
effort. The Act does not authorize ``fishing expeditions.'' When the DIA 
receives a request that does not ``reasonably describe'' the requested 
record, it will notify the requester of the deficiency. The deficiency 
should be highlighted in a distinctive letter, asking the requester to 
provide the type of information outlined below. This Agency is not 
obligated to act on the request until the requester responds to the 
distinctive letter. When practicable, the DIA will offer assistance to 
the requester in identifying the records sought and in reformulating the 
request to reduce the burden on the Agency in complying with the Act.
    (2) The following guidelines are provided to deal with ``fishing 
expedition'' requests and are based on the principle of reasonable 
effort. Descriptive information about a record may be divided into two 
broad categories.
    (i) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (3) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, non-random search based on the DIA's filing 
arrangements and existing retrieval systems, or unless the record 
contains enough Category II information to permit inference of the 
Category I elements needed to conduct such a search.
    (f) Requests for records may be denied only when the official 
designated in Sec. 292.8 determines that such denial is authorized by 
the FOIA.
    (g) When an initial request is denied, the requester will be 
apprised of the following:
    (1) The basis for the refusal shall be explained to the requester, 
in writing, identifying the applicable statutory exemption or exemptions 
invoked under provisions of this part.
    (2) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review.
    (3) The final denial shall include the name and title or position of 
the official responsible for the denial.
    (4) The response shall advise the requester with regard to denied 
information whether or not any reasonably segregable portions were 
found.
    (5) The response shall advise the requester of the right to appeal 
within 60 days of the date of the initial denial letter.
    (h)(1) Initial availability, releasability, and cost determinations 
will normally be made within 10 working days of the date on which a 
written request for an identifiable record is received by the DIA. If, 
due to unusual circumstances, additional time is needed, a written 
notification of the delay will be forwarded to the requester within the 
10 working day period. This notification will briefly explain the 
circumstances for the delay and indicate the anticipated date for a 
substantive response. The period of delay, by law, may not exceed 10 
additional working days.
    (2) Requests shall be processed in order of receipt. However, this 
does not preclude DIA from completing action on a request which can 
easily be answered, regardless of its ranking within the order of 
receipt. DIA may expedite action on a request regardless of its ranking 
within the order of receipt upon a showing of exceptional need or 
urgency. Exceptional need or urgency is determined at the discretion of 
DIA.



Sec. 292.5  How the public submits requests for records.

    (a) Requests to obtain copies of records must be made in writing. 
The requests should contain at least the following information:

[[Page 778]]

    (1) Reasonable identification of the desired record as specified in 
Sec. 292.4(e), including (if known) title or description, date, and the 
issuing office.
    (2) With respect to matters of official records concerning civilian 
or military personnel, the first name, middle name or initial, surname, 
date of birth, and social security number of the individual concerned, 
if known.
    (b) Persons desiring records should direct inquiry to: Defense 
Intelligence Agency, ATTN: DSP-1A (FOIA), Washington, DC 20340-3299.



Sec. 292.6  FOIA exemptions.

    The following type of records may be withheld in whole or in part 
from public disclosure unless otherwise prescribed by law.
    (a) Exemption (b)(1). Those properly and currently classified in the 
interest of national defense or foreign policy, as specifically 
authorized under the criteria established by Executive Order and 
implemented by regulations, such as DoD 5200.1-R.\4\ Although material 
may not be classified at the time of the FOIA request, a classification 
review may be undertaken to determine whether the information should be 
classified. The procedures outlined in DIAR 50-2 \5\ regarding 
classification apply. In addition, this exemption shall be invoked when 
the following situations are apparent:
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 292.3(a)(3).
    \5\ Forward requests to: Defense Intelligence Agency, ATTN: DSP-1A 
(FOIA), Washington, DC 20340-3299.
---------------------------------------------------------------------------

    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, DIA shall 
neither confirm or deny the existence or nonexistence of the record 
being requested. A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no record'' response when 
a record does not exist, and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose national security information.
    (2) Information that concerns one or more of the classification 
categories established by Executive Order and DoD 5200.1-R shall be 
classified if its unauthorized disclosure, either by itself or in the 
context of other information, reasonably could be expected to cause 
damage to the national security.
    (b) Exemption (b)(2). Those containing or constituting rules, 
regulations, orders, manuals, directives, and instructions relating to 
the internal personnel rules or practices of the DIA if their release to 
the public would substantially hinder the effective performance of a 
significant function of the Department of Defense, and they do not 
impose requirements directly on the general public. This exemption has 
two profiles, high (b)(2) and low (b)(2).
    (1) Records qualifying under high (b)(2) are those containing or 
constituting, rules, regulations, orders, manuals, directives, and 
instructions the release of which would allow circumvention of these 
records thereby substantially hindering the effective performance of a 
significant function of the Department of Defense.
    (2) Records qualifying under the low (b)(2) profile are those that 
are trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose the records.
    (c) Exemption (b)(3). Those concerning matters that a statute 
specifically exempts from disclosure by terms that permit no discretion 
on the issue, or in accordance with criteria established by that statute 
for withholding or referring to particular types of matters to be 
withheld.
    (d) Exemption (b)(4). (1) Those containing trade secrets or 
commercial or financial information that the DIA receives from a person 
or organization outside the Government with the understanding that the 
information or record will be retained on a privileged or confidential 
basis in accordance with the customary handling of such records. Records 
within the exemption must contain trade secrets or commercial or 
financial records the disclosure of which is likely to cause substantial 
harm to the competitive position of the source providing the 
information, impair the Government's ability to obtain

[[Page 779]]

necessary information in the future, or impair some other legitimate 
Governmental interest.
    (2) When a request is received for a record that was obtained or 
provided by a non-U.S. Government source, the source of the record or 
information (also known as ``the submitter'' for matters pertaining to 
proprietary data) shall be notified promptly of that request and 
afforded reasonable time (e.g. 30 calendar days) to present any 
objections concerning the release, unless it is clear that there can be 
no valid basis for objection. This practice is required for those FOIA 
requests for data not deemed clearly exempt from disclosure under 
Exemption (b)(4). For further guidance, see DoD 5400.7-R, paragraph 5-
207.
    (e) Exemption (b)(5). Those concerning internal advice, 
recommendations, and subjective evaluations, as contrasted with factual 
matters, that are reflected in records pertaining to the decision-making 
process of an agency, whether within or among agencies or within or 
among DoD components. Also exempted are records pertaining to the 
attorney-client privilege and the attorney work-product privilege.
    (f) Exemption (b)(6). Information in personnel and medical files, as 
well as similar personal information in other files, that, if disclosed 
to the requester, would result in a clearly unwarranted invasion of 
personal privacy. Release of information about an individual contained 
in a Privacy Act system of records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties.
    (g) Exemption (b)(7). Records or information compiled for the 
purpose of enforcing civil, criminal, or military law, including the 
implementation of Executive Orders or regulations issued pursuant to 
law, but only to the extent that the production of such law enforcement 
records or information
    (1) Could reasonably be expected to interfere with enforcement 
proceedings.
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication.
    (3) Could constitute an unwarranted invasion of the personal privacy 
of others (also see DoD 5400.7-R, paragraph 3-200, Number 7 a. 3. (a)-
(c)).
    (4) Could disclose the identity of a confidential source.
    (5) Would disclose investigative techniques and procedures, or
    (6) Could endanger the life or physical safety of law enforcement 
personnel. This exemption may be invoked to prevent disclosure of 
documents not originally created for, but later gathered for, law 
enforcement purposes.



Sec. 292.7  Filing an appeal for refusal to make records available.

    (a) A requester may appeal an initial decision to withhold a record. 
Further, if a requester determines a ``no record'' response in answer to 
a request to be adverse, this determination may also be appealed. 
Appeals should be addressed to: Defense Intelligence Agency, ATTN: DSP-
1A (FOIA), Washington, DC 20340-3299.
    (b) The requester shall be advised that the appellate authority must 
receive an appeal no later than 60 calendar days after the date of the 
initial denial letter.
    (c) Final determination on appeals normally will be made within 20 
working days of receipt of the appeal at the above address. If 
additional time is needed to decide the appeal because of unusual 
circumstances, the final determination may be delayed for the number of 
working days, not to exceed 10, which were not utilized as additional 
time for responding to the initial request. Appeals shall be processed 
in order of receipt. However, this does not preclude DIA from completing 
action on an appeal request which can easily be answered, regardless of 
its ranking within the order of receipt. DIA may expedite action on an 
appeal request regardless of its ranking within the order of receipt 
upon a showing of exceptional need or urgency. Exceptional need or 
urgency is determined at the discretion of DIA.
    (d) When an appeal is denied, the requester will be apprised of the 
following:
    (1) The basis for the refusal shall be explained to the requester, 
in writing, identifying the applicable statutory exemption or exemptions 
invoked under provisions of this part.

[[Page 780]]

    (2) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review.
    (3) The final denial shall include the name and title or position of 
the official responsible for the denial.
    (4) The response shall advise the requester with regard to denied 
information whether or not any reasonably segregable portions were 
found.
    (5) The response shall advise the requester of the right to judicial 
review.



Sec. 292.8  Responsibilities.

    When a request for information or records is received, the following 
will apply:
    (a) DSP-1A. (1) Receives requests and assigns tasking.
    (2) Maintains appropriate suspenses and authorizes all extensions of 
response time.
    (3) Acts as the responsible operating office for all Agency actions 
related to the FOIA.
    (4) Drafts and transmits responses on:
    (i) The release of records and/or information.
    (ii) Obtaining supplemental information from the requester.
    (iii) Informing the requester of any fees required.
    (iv) The transfer to another element or agency of the initial 
request.
    (5) Fulfills the annual reporting requirement and maintains 
appropriate records.
    (6) Acts as the responsible official for all initial denials of 
access to the public.
    (b) All DIA elements:
    (1) When identified by DSP-1A as the Office of Primary 
Responsibility (OPR) will:
    (i) Search files for any relevant records, and/or
    (ii) Review records for possible public release within the time 
constraints assigned, and
    (iii) Prepare a documented response in any case of nonrelease.
    (2) All employees are required to read this part to ensure 
familiarity with the requirements of the FOIA as implemented.
    (c) The General Counsel. (1) Ensures uniformity in the FOIA legal 
positions within the DIA and with the Department of Defense.
    (2) Secures coordination when necessary with the General Counsel, 
DoD, on denials of public requests.
    (3) Acts as the focal point in all judicial actions.
    (4) Reviews all final denials.
    (d) The Director, and on his behalf, the Chief of Staff:
    (1) Exercises overall staff supervision of the FOIA activities of 
the Agency.
    (2) Acts as the responsible official for all denials of appeals.

 Appendix A to Part 292--Uniform Agency Fees for Search and Duplication 
            Under the Freedom of Information Act (as Amended)

Search + Review (only in the case of commercial requesters)
    a. Manual search or review--

------------------------------------------------------------------------
                                                                  Hourly
              Type                            Grade                rate
------------------------------------------------------------------------
Clerical.......................  E9/GG-08 and below............   $12.00
Professional...................  O1-O6/GG-09-GG-15.............    25.00
Executive......................  O7/GG-16/ES1 and above........    45.00
------------------------------------------------------------------------

    b. Computer search is based on direct cost of the central processing 
unit, input-output devices, and memory capacity of the actual computer 
configuration. The salary scale (equating to paragraph a. above) for the 
computer/operator/programmer determining how to conduct and subsequently 
executing the search will be recorded as part of the computer search.
    c. Actual time spent travelling to a search site, conducting the 
search and return may be charged as FOIA search costs.

                                 General

Pre-Printed material, per printed page................................02
Office copy, per page.................................................15
Microfiche, per page..................................................25

                     Aerial Photography Reproduction

Per Print..........................................................$2.50

    d. See Chapter VI of DoD 5400.7-R for further guidance on fees.

[[Page 781]]



PART 293_NATIONAL IMAGERY MAPPING AGENCY (NIMA) FREEDOM OF INFORMATION 
ACT PROGRAM--Table of Contents




Sec.
293.1 Purpose.
293.2 Policy.
293.3 Applicability and scope.
293.4 Definitions.
293.5 Responsibilities.
293.6 Procedure.

    Authority: 5 U.S.C. 552a.

    Source: 65 FR 38201, June 20, 2000, unless otherwise noted.



Sec. 293.1  Purpose.

    This part implementations the Freedom of Information Act (FOIA) and 
32 CFR part 286 to establish a uniform process in responding to FOIA 
requests received by the National Imagery Mapping Agency (NIMA).



Sec. 293.2  Policy.

    It is NIMA policy that:
    (a) Agency records that, if disclosed, would cause no foreseeable 
harm to an interest protected by a FOIA exemption, will be made readily 
accessible to the public.
    (b) NIMA organizations will ensure that internal procedural matters 
do not unnecessarily impede a FOIA requester from promptly obtaining 
NIMA records.



Sec. 293.3  Applicability and scope.

    This part applies to all NIMA organizations and is intended as a 
brief overview of the FOIA process within NIMA. To obtain complete 
guidance, this instruction must be used in conjunction with 32 CFR part 
286. Additional assistance is also available from the Office of General 
Counsel (GC).



Sec. 293.4  Definitions.

    Agency records.
    (1) A product of data compilation (such as all books, papers, maps, 
photographs, and machine-readable materials including those in 
electronic form or format) or other documentary materials (such as 
letters, memos, or notes) regardless of physical form or characteristics 
that is made or received by NIMA in connection with the transaction of 
public business, and is in NIMA's possession and control at the time the 
FOIA request is made.
    (2) The following are not considered Agency records:
    (i) Objects or articles, such as structures, furniture, vehicles, 
and equipment.
    (ii) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (iii) Personal records of an individual not subject to agency 
creation or retention requirements, that have been created and 
maintained primarily for the convenience of the Agency employee, and 
that are not distributed to other Agency employees for their official 
use. Personal records fall into three categories: those created before 
entering Government service; private materials brought into, created, or 
received in the Office that were not created or received in the course 
of transacting Government business; and work-related personal papers 
that are not used in the transaction of Government business.
    (3) Agency records available to the public through an established 
public distribution system, the Federal Register, the National Technical 
Information Service (NTIS), or the Internet normally need not be 
processed as FOIA requests, unless the requester insists that the 
request be processed under the FOIA.
    (4) To be subject to the FOIA, the Agency record being requested 
must actually exist and be in the possession and control of the Agency 
at the time a FOIA request is made. There is no obligation to create, 
compile, or obtain a record to satisfy a FOIA request.
    Appellate authority (AA). An agency employee who has been granted 
authority to review the decision of the initial denial authority (IDA) 
(see IDA definition) that has been appealed by a FOIA requester and make 
the appeal determination for the Agency on the releasability of the 
records in question.
    FOIA exemption. Agency records, which if disclosed, would cause a 
foreseeable harm to an interest protected by a FOIA exemption, may be 
withheld from public release. There are nine exemptions that permit an 
agency to

[[Page 782]]

withhold records requested under a FOIA request. The exemptions are for 
records that apply to:
    (1) Information that is currently and properly classified pursuant 
to an Executive Order in the interest of national defense or foreign 
policy.
    (2) Information that pertains solely to the internal rules and 
practices of the Agency. This exemption has two profiles, high and low. 
The high profile permits withholding of a document that, if released, 
would allow circumvention of an Agency rule, policy, or statute, thereby 
impeding the Agency in the conduct of its mission. The low profile 
permits withholding of the record if there is no public interest in the 
record, and it would be an administrative burden to process the request. 
Activities should not rely on the low profile exemption because the 
Department of Justice may not defend its use.
    (3) Information specifically exempted from disclosure by a statute 
that establishes particular criteria for withholding the record. The 
language of the statute must clearly state that the information will not 
be disclosed.
    (4) Information such as trade secrets and commercial or financial 
information obtained from a company on a privileged or confidential 
basis that, if released, would result in competitive harm to the 
company.
    (5) Inter- and intra-agency momoranda that are deliberative in 
nature. This exemption is appropriate for internal documents that are 
part of the decision-making process, and contain subjective evaluations, 
opinions, and recommendations. A document must be both deliberative and 
part of a decision-making process to qualify for this exemption.
    (6) Information from personnel and medical files that would result 
in a clearly unwarranted invasion of personal privacy if disclosed or 
released.
    (7) Records or information compiled for law enforcement purposes 
that:
    (i) Could reasonably be expected to interfere with law enforcement 
proceedings.
    (ii) Would deprive a person of a right to a fair trial or impartial 
adjudication.
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of the personal privacy of others.
    (iv) Would disclose the identity of a confidential source; would 
disclose investigative techniques and procedures; and
    (v) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) The examination, operation, or condition reports prepared by, on 
behalf of, or for the use of any Agency responsible for the regulation 
or supervision of financial institutions.
    (9) Geological and geophysical information and data (including maps) 
concerning wells.
    FOIA request.
    (1) An FOIA request is a request, in writing, for agency records. 
The request can either implicitly cite FOIA, but must reasonably 
describe the record being requested. In addition, the request must 
include language indicating the requester's willingness to pay fees 
associated with processing the FOIA request.
    (2) Any person, including a member of the public (U.S. or foreign 
citizen or entity), an organization, or a business can make FOIA 
requests. Requests from officials of State or local Governments for NIMA 
records are considered the same as requests from any other requester. 
Requests from members of Congress not seeking records on behalf of a 
congressional committee or subcommittee, and requests from either House 
sitting as a whole or made on behalf of constituents are considered the 
same as requests from any other requester. Requests from foreign 
governments that do not invoke the FOA are referred to appropriate 
foreign disclosure channels and the requester is so notified by GC.
    Initial denial authority (IDA). An agency employee who has been 
granted authority to make an initial determination for the Agency that 
records requested in a FOIA request should be withheld from disclosure 
or release.
    Mandatory declassification officer (MDO). A senior agency official 
has been granted authority to perform mandatory declassification reviews 
for NIMA.

[[Page 783]]

    Multi-track processing. A system in which pending FOIA requests that 
cannot be processed within the statutory time limit of 20 working days 
are separated into distinct working tracks. The tracks are based on the 
date the FOIA request is received by GC, the amount of work and time 
involved in processing the request, and whether the request qualifies 
for expedited processing.
    NIMA operational file exemption. 10 U.S.C. 457 provides that NIMA 
may withhold from public disclosure operational files that:
    (1) As of September 22, 1996 were maintained by National 
Photographic Interpretations Center (NPIC) or
    (2) Concern the activities of the Agency as of that date that were 
performed by NPIC. Questions on operational files created after 22 
September 1996 should be directed to GC.



Sec. 293.5  Responsibilities.

    (a) Director of NIMA (D/NIMA).
    (1) Designates the Agency initial denial authority (IDA) and 
appellate authority (AA).
    (2) Appoints substitutes for the current IDA or AA if necessary.
    (b)  The Chief of Staff (CS) (or acting CS as designated by CS) 
serves as AA.
    (c) The Director of the Congressional Affairs Office (D/CA) (or 
acting D/CA as designated by D/CA) serves as IDA.
    (d) Office of General Counsel (GC).
    (1) Administers NIMA's FOIA program for processing FOIA requests 
received by NIMA.
    (2) Processes all requests for mandatory declassification review in 
response to requests for declassificaton that meet the requirements of 
Executive Order 12958.
    (3) Submits this part to the Department of Defense to publish in the 
Code of Federal Regulations and the Federal Register.
    (e) Office Directors in the functional Directorates and the Office 
Directors who are aligned with D/NMA (for example, Office of General 
Counsel, Office of Inspector General, Chief of Staff, International and 
Policy Office, or Mission Support Office) with regard to search for 
records.
    (1) Appoint an Office point of contact (POC) to whom FOIA requests 
can be directed from GC and who serves as a direct liaison with GC.
    (2) Forward, through the POC, the FOIA request from GC to the 
organization most likely to hold or maintain the records being 
requested.
    (3) Direct, through the POC, a search for the records be completed 
in a timely manner and respond directly to GC on the outcome of the 
search.
    (f) Office Directors in the functional Directorates and the Office 
Directors who are aligned with D/NIMA (for example, Office of General 
Counsel, Office of Inspector General, Chief of Staff, International and 
Policy Office, or Mission Support Office) with regard to 
declassification review.
    (1) Appoint an employee to act as the POC for the Office.
    (2) Oversee and coordinate, through the POC, declassification 
reviews for FOIA.
    (3) Make, through the POC, recommendations to the mandatory 
declassification officer (MDO) on the declassification of Agency 
records.
    (g) Chief, Mission Support Office, Security Programs Division, as 
MDO.
    (1) Conducts declassification reviews for FOIA.
    (2) Advises GC whether Agency records are properly classified in 
accordance with Executive Order 12958 and should be withheld from public 
release or disclosure.



Sec. 293.6  Procedures.

    (a) Administration of the FOIA program. GC receives all FOIA 
requests submitted to NIMA, logs the requests into a database, and 
initiates the record search. If a final response cannot be made to the 
FOIA requester within the statutory time requirement of 20 working days, 
GC advises the requester of this fact and explains how the FOIA request 
will be processed within a multi-track processing system. As part of the 
administration FOIA process, GC:
    (1) Assesses and collects fees for costs associated with processing 
FOIA requests, and approves or denies requests for fee waivers. Fees 
collected are forwarded through the Financial Management Directorate 
(CFO) to the U.S. Treasury.

[[Page 784]]

    (2) Approves or denies requests for expedited processing.
    (3) Sends a ``no records'' response to FOIA requesters after a 
records search reveals that no Agency records exist that are responsive 
to the FOIA request.
    (4) Provides training with NIMA on the FOIA law and Agency 
processing procedures.
    (5) Conducts periodic reviews of NIMA's FOIA program.
    (6) Maintains a public reading room for inspecting and copying 
Agency records and arranges appointments for access to reading room 
records.
    (7) Maintains an ``electronic'' reading room for Agency records, an 
index for frequently requested records, a FOIA handbook, and other 
material as required by the FOIA on a public Internet website.
    (8) Coordinates with other DoD Components, other members of the 
Intelligence Community, or the Department of Justice, as needed, on FOIA 
requests referred to NIMA.
    (9) Coordinates with other DoD Components, other members of the 
Intelligence Community, or the Department of Justice, as needed, prior 
to releasing any records under the FOIA that may also be pertinent to 
litigation pending against the United States.
    (10) Prepares the Annual Report--Freedom of Information Act (DD Form 
2564) and forwards the report to the Directorate for Freedom of 
Information and Security Review, Washington Headquarters Services.
    (11) Coordinates responses to all news media requests with the 
Public Affairs Office (PA) and congressional inquiries with CA.
    (12) Coordinates denials of access to Agency records with NIMA's IDA 
and AA and prepares a legal synopsis and recommendation for release or 
denial of the record.
    (13) Maintains FOIA case files in accordance with the NIMA records 
management schedules in NI 8040.1.
    (b) Searching for responsive NIMA records.
    (1) GC forwards a copy of the FOIA request to the appropriate Agency 
POC. The POC fowards the request to the Office most likely to hold or 
maintain the records being requested.
    (2) The Office conducts a search for records responsive to the FOIA 
request. all NIMA offices must promptly conduct searches to locate 
records responsive to a FOIA request, even if the search is likely to 
reveal classified, sensitive, or for official use only (FOUO) records. A 
reasonable search includes the search of all activities and locations 
most likely to have the records that have not been transferred to the 
National Archives and Records Administration (NARA).
    (3) If a reasonable search does not identify or locate records 
responsive to the request, the Office must provide GC with a ``no 
records'' response and provide a recommendation of other Offices in 
which to conduct the search.
    (4) If a reasonable search identifies or locates records responsive 
to the request, the Office must send two copies of the responsive record 
to GC and provide a recommendation regarding releasability of the 
record. Any objection to release of the record must be based on one or 
more of the FOIA exemptions. The office must also complete and forward 
DD Form 2086 or DD Form 2086-1, as appropriate, detailing the time and 
cost incurred in the search, review, and copying of the responsive 
records.
    (5) FOUO records. When an office has identified FOUO records that 
are responsive to a FOIA request, the record must be evaluated to 
determine whether any FOIA exemptions are applicable to withhold either 
the entire record or portions of the record from release. Unless the 
requested record clearly falls into one or more of the FOIA exemptions, 
an FOUO marking all not prevent a record from being released to the FOIA 
requester.
    (6) All Offices promptly forward or return any misaddressed FOIA 
requests to GC.
    (c) Mandatory declassification review. When a request for a 
declassification review is received, or when an office has identified 
classified records that are responsive to a FOIA request and has 
forwarded copies to GC, GC forwards one copy of the record to the MDO 
for a declassification review. The MDO works with the declassification

[[Page 785]]

POC to determine if the record in question is currently and properly 
classified under Executive Order 12958, and if any information contained 
in the record may be segregated for release to the FOIA requester. The 
MDO forwards the results of the declassification review to GC, in 
writing, along with any recommendations on whether information in the 
record can be reasonably segregated and released to the FOIA requester.
    (d) Withholding Agency records from public release. If the requested 
record is not releasable because it is either currently and properly 
classified or falls within another FOIA exemption, GC prepares an 
analysis on the rationale for denying the record, prepares the initial 
denial letter to be sent to the FOIA requester, and forwards the 
materials to the Agency IDA. The Agency IDA reviews the FOIA request and 
rationale for withholding the record and, if he or she concurs, signs 
the letter prepared by GC. The letter signed by the Agency IDA advises 
the FOIA requester that the records requested are being withheld from 
release, states the amount of material withheld from release, states the 
FOIA exemptions supporting the denial, and provides information on 
appealing the decision to the Agency AA. A copy of all initial denial 
letters is forwarded to GC and maintained in the individual FOIA file.
    (e) Appeal rights of FOIA requesters.
    (1) If a FOIA requester appeal the initial denial decision of the 
agency IDA, GC processes the appeal for review by the agency AA. The AA 
reviews the initial FOIA request, GC's analysis, and the denial decision 
made by the IDA. The AA has the authority to either uphold the decision 
made by the IDA, and withhold the requested records from release, or 
reverse the decision made by the IDA and release all or a portion of the 
records requested. GC prepares the written response to the FOIA 
requester for the AA's signature. If the AA makes a final determination 
to uphold the decision made by the agency IDA, the final Agency response 
includes the basis for the decision and advises the FOIA requester of 
the right to seek judicial review.
    (2) In addition to denials of information, a FOIA requester also has 
a right to appeal initial assessments made by GC regarding fee 
categories, fee waivers, fee estimates, requests for expedited 
processing, no record determinations, failure to meet the statutory time 
limits, or any determination found to be adverse by the requester. The 
authority to uphold or reverse initial assessments made by GC in these 
areas is the agency AA. The decision of the AA is final.
    (f) Relationship between the FOIA and the Privacy Act. Not all 
requesters will be knowledgeable of the appropriate act to cite when 
requesting records or access to records. In some instances, either the 
FOIA or the Privacy Act may be cited.
    (1) Both the FOIA and the Privacy Act give the right to request 
access to records held by Federal Agencies. Access rights under the FOIA 
are given to any individual, business, or organization, but the Privacy 
Act gives access rights only to those individuals who are the subject of 
the records being requested.
    (2) When responding to a request for records under the Privacy Act, 
detailed guidance on which act to apply may be found in 32 CFR part 286 
and 32 CFR part 310. Additional assistance is also available from GC.



PART 295_OFFICE OF THE INSPECTOR GENERAL, FREEDOM OF INFORMATION ACT 
PROGRAM--Table of Contents




Sec.
295.1 Purpose.
295.2 Applicability.
295.3 Definition of OIG records.
295.4 Other definitions.
295.5 Policy.
295.6 Responsibilities.
295.7 Procedures.
295.8 Annual report.
295.9 Organization and mission.

Appendix A to Part 295--For Official Use Only (FOUO)
Appendix B to Part 295--Exemptions

    Authority: 5 U.S.C. 552.

    Source: 56 FR 49694, Oct. 1, 1991, unless otherwise noted.



Sec. 295.1  Purpose.

    This part establishes the policy and sets forth the procedures by 
which the public may obtain information and

[[Page 786]]

records from the Inspector General (IG) under the Freedom on Information 
Act (FOIA). It implements title 5, United States Code (U.S.C.) section 
552, as amended by the Freedom of Information Reform Act of 1986, 32 CFR 
part 285 and 32 CFR part 286.



Sec. 295.2  Applicability.

    The provisions of this part are applicable to all components of the 
Office of the Inspector General (OIG) and govern the procedures by which 
FOIA requests for information will be processed and records may be 
released under the FOIA.



Sec. 295.3  Definition of OIG records.

    (a) The products of data compilation, such as books, papers, maps, 
and photographs, machine readable materials or other documentary 
materials, regardless of physical form or characteristics, made or 
received by an agency of the United States Government under Federal law 
in connection with the transaction of public business and in the OIG's 
possession and control at the time the FOIA request is made.
    (b) The following are not included within the definition of the word 
``record'':
    (1) Objects or articles, such as structures, furniture, vehicles and 
equipment, whatever their historical value, or value as evidence.
    (2) Administrative tools by which records are created, stored, and 
retrieved, if not created or used as sources of information about 
organizations, policies, functions, decisions, or procedures of the OIG. 
Normally, computer software, including source code, object code, and 
listings of source and object codes, regardless of medium are not agency 
records. (This does not include the underlying data which is processed 
and produced by such software and which may in some instances be stored 
with the software.) Exceptions to this position are outlined in Sec. 
295.4(c).
    (3) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (4) Personal records of an individual not subject to agency creation 
or retention requirements, created and maintained primarily for the 
convenience of an OIG employee, and not distributed to any other OIG 
employee for their official use, or otherwise disseminated for official 
use.
    (5) Information stored within a computer for which there is no 
existing computer program for retrieval of the requested information.
    (c) In some instances, computer software may have to be treated as 
an agency record and processed under the FOIA. These situations are 
rare, and shall be treated on a case-by-case basis. Examples of when 
computer software may have to be treated as an agency record are:
    (1) When the data is embedded within the software and can not be 
extracted without the software. In this situation, both the data and the 
software must be reviewed for release or denial under the FOIA.
    (2) Where the software itself reveals information about 
organizations, policies, functions, decisions, or procedures of the OIG, 
such as computer models used to forecase budget outlays, calculate 
retirement system costs, or optimization models on travel costs.
    (3) See appendix B to this part for further information on release 
determinations of computer software.
    (d) If unaltered publications and processed documents, such as 
regulations, manuals, maps, charts, and related geophysical materials 
are available to the public through an established distribution system 
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do 
not apply and they need not be processed under the FOIA. Normally, 
documents disclosed to the public by publication in the Federal Register 
also require no processing under the FOIA. In such cases, the OIG will 
direct the requester to the appropriate source to obtain the record.



Sec. 295.4  Other definitions.

    (a) FOIA Request. A written request for OIG records, made by any 
person, including a member of the public (U.S. or foreign citizen), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law that either explicitly or implicitly invokes

[[Page 787]]

the FOIA, 32 CFR part 285 and 32 CFR part 286, or this part.
    (b) Initial Denial Authority (IDA). The official who has been 
granted authority to withhold records requested under the FOIA, for one 
or more of the nine categories of records exempt from mandatory 
disclosure, by the head of the OIG Component designated by the IG to 
administer the IG FOIA Program.
    (c) Appellate Authority. The IG or his or her designee having 
jurisdiction for this purpose over the record.
    (d) Administrative Appeal. A request by a member of the general 
public, made under the FOIA, asking the appellate authority of the OIG 
to reverse an IDA decision to withhold all or part of a requested record 
or an IDA decision to deny a request for waiver or reduction of fees.
    (e) Public Interest. Public interest is official information that 
sheds light on an agency's performance of its statutory duties because 
the information falls within the statutory purpose of the FOIA of 
informing citizens about what their Government is doing. That statutory 
purpose, however, is not fostered by disclosure of information about 
private citizens that is accumulated in various governmental files that 
reveals little or nothing about an agency's or official's own conduct.



Sec. 295.5  Policy.

    (a) General. (1) It is the policy of the OIG to promote public trust 
by conducting its activities in an open manner, and by providing the 
public with the maximum amount of accurate and timely information 
concerning those activities, consistent with the need for security and 
adherence to other requirements of law and regulation.
    (2) Records not specifically exempt from disclosure under the FOIA 
or prohibited by statutory or other regulatory requirements will, upon 
request, be made readily accessible to the public.
    (3) Records that are specifically exempt from disclosure under the 
FOIA or prohibited by statutory or other regulatory requirements will be 
withheld from the public only upon the determination of the initial 
Denial Authorities identified in Sec. 295.6 of this part, or the 
designated Appellate Authority.
    (b) News Media Requests. (1) Requests from news media 
representatives for records that would not be withheld if requested 
under the FOIA or prohibited from release under other statutory or 
regulatory authority, will be released promptly by the OIG element 
originating the record.
    (2) Requests from news media representatives for records that are 
exempt from release under the FOIA, or prohibited from release under 
other statutory or regulatory authority will be provided to the Freedom 
of Information Act and Privacy Act (FOIA/PA) Division, Office of the 
Assistant Inspector General for Investigations, along with the requested 
records, for review and a release determination and the news media 
representatives will be so advised.
    (3) Extracts of the nonexempt portions of such records may be 
prepared in response to a specific request from a news media 
representative but shall be coordinated for release with the FOIA/PA 
Division. Extracts shall be prepared in accordance with the sample at 
appendix to Sec. 295.5.
    (c) Control System. (1) A request for OIG records that invokes the 
FOIA shall enter a formal control system designed to ensure compliance 
with the FOIA. A release determination must be made and the requester 
informed within the time limits specified in this part.
    (2) Any request for OIG records that either explicitly or implicitly 
cites the FOIA will be processed under the provisions set forth in this 
part, unless otherwise required by Sec. 295.5(m) of this part. All such 
requests shall be forwarded to the FOIA/PA Division.
    (d) Promptness of Response. (1) A request from a member of the 
public for OIG records will be responded to within 10 working days of 
the date of its receipt in the FOIA/PA Division, unless a delay is 
authorized.
    (2) Receipt of the request will be acknowledged and the requester 
will be promptly advised of any additional information needed to assure 
compliance with procedures established in this part. In the event there 
are a significant number of requests, e.g., 10 or more, the requests 
will be processed in order of date of receipt. This does not

[[Page 788]]

preclude the OIG from completing action on a request which can be easily 
answered, regardless of its ranking within the order of receipt. The OIG 
may expedite action on a request regardless of its ranking within the 
order of receipt upon a showing of exceptional need or urgency. 
Exceptional need will be determined at the discretion of the OIG.
    (3) These provisions also apply to a request received on referral 
from another DoD Component or government agency and time limits will 
begin on the date of receipt in the OIG FOIA/PA Division.
    (e) Use of Exemptions. It is OIG policy to make records publicly 
available unless they qualify for exemption under one or more of the 
nine exemptions. The OIG may elect to make a discretionary release, 
however, a discretionary release is generally not appropriate for 
records exempt under exemptions (b)(1), (b)(3), (b)(4), (b)(6) and 
(b)(7)(C). Exemptions (b)(4), (b)(6) and (b)(7)(C) can not be claimed 
when the requester is the submitter of the information. The categories 
of records which are exempt from release are identified in appendix B of 
this part.
    (f) For Official Use Only (FOUO). The use of FOUO markings will be 
accomplished in accordance with the provisions of appendix A of this 
part, and exemptions (b)(2) through (b)(9) as set forth in appendix B of 
this part. Additional guidance will be provided to OIG elements, as 
needed, by the FOIA/PA Division.
    (g) Public Domain. Nonexempt records released under the authority of 
this part are considered to be in the public domain. Such records may 
also be made available in the OIG Reading Room located in the FOIA/PA 
Division. Exempt records released pursuant to this part or other 
statutory or regulatory authority, however, may be considered to be in 
the public domain only when their release constitutes a waiver of the 
FOIA exemption. When the release does not constitute such a waiver, such 
as when disclosure is made to a properly constituted advisory committee 
or to a Congressional Committee, or to an individual to whom the record 
pertains, the released records do not lose their exempt status. Also, 
while authority may exist to disclose records to individuals in their 
official capacity, the provisions of this part apply if the same 
individual seeks to use the records in a private or personal capacity.
    (h) Creation of Records. (1) A record must exist and be in the 
possession or control of the OIG at the time of the request to be 
considered subject to release under this part and the FOIA. Mere 
possession of a record does not presume OIG control and such records, or 
identifiable portions thereof, will be referred to the originating 
agency for a release determination and/or direct response to the 
requester. There is no obligation to create nor compile a record to 
satisfy a FOIA request; however, the OIG may compile a new record when 
doing so would result in a more useful response to the requester, or be 
less burdensome to the OIG than providing the existing records, and the 
requester does not object. The cost of creating or compiling such a 
record will not be charged to the requester unless the fee is equal to, 
or less than, the fee that would be charged for providing the existing 
record. Any fee assessments will be made in accordance with chapter IV 
of DoD 5400.7-R (32 CFR part 286).
    (2) With respect to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when responding to FOIA 
requests for electronic data where creation of a record, programming, or 
particular format are questionable, the OIG will apply a standard of 
reasonableness. In other words, if the capability exists to respond to 
the request, and the effort would be a business as usual approach, then 
the request will be processed. However, the request will not be 
processed where the capability to respond does not exist without a 
significant expenditure of resources, thus not be a normal business as 
usual approach.
    (i) Describing Records Sought. (1) It is the responsibility of the 
member of the public requesting records to adequately identify the 
records. A member of the public must describe the records sought with 
sufficient information to permit the OIG to locate the records with a 
reasonable amount of effort,

[[Page 789]]

since the FOIA does not authorize ``fishing expeditions.'' Descriptive 
information about a record may be divided into two broad categories:
    (i) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (2) When the OIG receives a request that does not ``reasonably 
describe'' the requested record with sufficient Category I information 
to permit the conduct of an organized nonrandom search, or sufficient 
Category II information to permit inference of the Category I elements 
needed to conduct such a search, the requester will be notified in 
writing of the defect and of the need for more specific identification 
of the records sought. The specificity letter will provide guidance in 
identifying the records sought and in reformulating the request to 
reduce the burden on the OIG in complying with the FOIA. The OIG is not 
obligated to act on requests until an adequate description is provided 
by the requester.
    (3) When the OIG receives a request in which only personal 
identifiers, e.g., name and Social Security Account Number, are provided 
in connection with the request for records concerning the requester, 
only records retrievable by personal identifiers will be searched. The 
search for such records may be conducted under Privacy Act procedures. 
No record will be denied that is releasable under the FOIA.
    (j) Referrals. (1) The OIG has the responsibility of protecting the 
identity of individuals who make protected disclosures of wrongdoing on 
the part of others, under the ``Whistleblower Protection Acts''. When a 
FOIA requester has identified himself/herself as the ``Whistleblower'' 
in the matter for which records are being sought, in accordance with 
Sec. 295.7(b)(3) of this part, or the FOIA/PA Division can reasonably 
determine that the FOIA requester is the ``Whistleblower'', the 
individual's identity will continue to be protected in all of the 
following circumstances involving referrals, except to the extent that 
such protection will impede the release of responsive records to the 
requester. In such event, the requester will be advised of the impedance 
and offered the option of allowing himself/herself to be identified 
solely for the purpose of obtaining maximum release of records 
responsive to the FOIA request. If the requester chooses to continue 
anonymity, the request will be processed only to the extent that will 
allow continued protection of the individual's identity.
    (2) The OIG will refer a FOIA request to another DoD Component or to 
a Government agency outside the DoD when the OIG has no records 
responsive to the request, but believes the other DoD Component or 
outside agency may have, and the other DoD Component or outside agency 
has confirmed that it holds the record. When the other DoD Component or 
outside agency agrees to the referral, the requester will be advised of 
the referral and that the OIG has no responsive records, with the 
following exceptions:
    (i) If it is determined by the other DoD Component or outside agency 
that the existence or nonexistence of the record itself is classified, 
the OIG will inform the requester only that the OIG has no responsive 
record and no referral will take place.
    (ii) If the record falls under one or more of the ``Exclusions'' 
under the FOIA (see appendix B of this part), as determined by the other 
DoD Component or outside agency, the OIG will advise the requester only 
that the OIG has no responsive record and no referral will take place.
    (3) The OIG will refer a record, or portions of a record that holds 
but that was originated by another DoD Component or outside agency, or 
for a record that contains substantial information that originated with 
another DoD Component or outside agency, to that Component or agency 
(unless the agency is not subject to the FOIA) for a release 
determination and/or direct response to the requester. In any such case, 
direct coordination will be effected and concurrence obtained from the 
other Component or agency prior to the referral. A copy of the record 
will be provided to

[[Page 790]]

the Component or agency with the referral, and the requester will be 
notified of the referral, consistent with any security requirements or 
``Exclusion'' provisions of the FOIA. The OIG will not, in any case, 
release or deny such records without prior consultation with the other 
DoD Component or outside agency. If the requester is the 
``Whistleblower'', the record or portion of the record will be provided 
to the DoD Component or agency, with a request for a release 
determination and return of the record to the OIG for response to the 
requester.
    (4) The OIG will refer a FOIA request for a classified record that 
it holds, but did not originate, to the originating DoD Component or 
outside agency (unless the agency is not subject to the FOIA). If the 
record originated with the OIG but the classification is derivative, 
i.e., contains classified information that originated elsewhere and was 
incorporated in the OIG record, the record will be referred to the 
originating authority with a recommendation for release; or, after 
consultation with the originating authority, with a request for a 
declassification review and/or release determination and return of the 
record. If the requester is the ``Whistleblower'', the record will be 
provided to the originating authority with a request for a release 
determination and return of the record to the OIG for response to the 
requester.
    (5) The OIG may also refer a request for a record that was 
originated by the OIG for the use of another DoD Component or outside 
agency, to that Component or agency with a recommendation for release, 
after any necessary coordination. The requester will be notified of such 
action consistent with any security requirements or ``Exclusion'' 
provisions of the FOIA.
    (6) A FOIA request for investigative, intelligence, or any other 
type of record on loan from another DoD Component or outside agency to 
the OIG for a specific purpose will be referred to the DoD Component or 
outside agency that provided the records, if the records are restricted 
from further release and so marked. However, if for investigative or 
intelligence purposes, the outside Component or agency desires anonymity 
as determined through coordination, the OIG will respond directly to the 
requester.
    (7) A FOIA request for a record, or portions of a record, held by 
the OIG, that originated with a non-U.S. government agency that is not 
subject to the FOIA, will be responded to by the OIG.
    (8) Notwithstanding anything to the contrary in this section, all 
requesters seeking National Security Council (NSC) or White House 
documents will be advised that they should write directly to the NSC or 
White House for such documents. Should the requester insist upon an OIG 
search for these records, the OIG will conduct an appropriate search 
pursuant to the FOIA. OIG/DoD documents in which the NSC or White House 
has a concurrent reviewing interest will be forwarded by the FOIA/PA 
Division to the Director, Freedom of Information and Security Review 
(DFOISR), Office of the Assistant Secretary of Defense (Public Affairs) 
(OASD(PA)), which shall effect coordination with the NSC or White House, 
and return the documents to the originating agency after NSC review and 
determination. The FOIA/PA Division will forward any documents found in 
OIG files that are responsive to the FOIA request to DFOISR, OASD(PA) 
for their coordination with the NSC or White House, and return to the 
OIG with a release determination for final processing of the request.
    (9) On occasion, the OIG receives FOIA requests for General 
Accounting Office (GAO) documents containing OIG information. Even 
though the GAO is outside of the Executive Branch, and not subject to 
the FOIA, all FOIA requests for GAO documents containing DoD information 
received directly from the public, or on referral from the GAO, will be 
processed under the provisions of the FOIA.
    (k) Authentication of Records. Records provided under this part will 
be authenticated, upon written request, to fulfill an official 
Government or other legal function. This service is in addition to that 
required under the FOIA and is not included in the FOIA fee schedule; 
therefore, a fee of $5.20 may be charged for each such authentication.
    (l) Records Management. FOIA records shall be maintained and 
disposed of in

[[Page 791]]

accordance with Inspector General Defense Manual (IGDM) 5015.2,\1\ 
``Records Management Program''.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the Information and 
Operations Support Directorate, Publications Management Branch, room 
420, 400 Army Navy Drive, Arlington, VA 22202-2884.
---------------------------------------------------------------------------

    (m) Relationship Between the FOIA and the Privacy Act (PA). Not all 
requesters are knowledgeable of the appropriate statutory authority to 
cite when requesting records. In some instances, they may cite neither 
Act, but will imply one or both Acts. For these reasons, the following 
guidelines are provided to ensure that requesters receive the greatest 
amount of access rights under both Acts:
    (1) Where requesters seek records about themselves which are 
contained in a PA system of records and cite or imply the PA, the OIG 
will process their requests under the provisions of the PA.
    (2) Where requesters seek records about themselves which are not 
contained in a PA system of records and cite or imply the PA, the 
requests will be processed under the provisions of the FOIA, since they 
have no access under the PA.
    (3) Where requesters seek records about themselves that are 
contained in a PA system of records and cite or imply the FOIA or both 
Acts, the requests will be processed under the time limits of the FOIA 
and the exemptions and fees of the PA. This is appropriate since greater 
access will generally be received under the PA.
    (4) Where requesters seek agency records (as opposed to personal 
records) and cite or imply the PA and FOIA, or where requesters cite or 
imply only the FOIA, the requests will be processed under the FOIA.
    (5) Requesters will be advised in the final responses to their 
requests why a particular Act was used in processing their requests.
    (n) Index and ``(a)(2)'' Materials. (1) No order, opinion, statement 
of policy, interpretation, staff manual or instruction (except as 
indicated below) issued after July 4, 1967, which is not indexed and 
either made available or published, may be relied upon, used, or cited 
as a precedent against any member of the public unless that individual 
has actual and timely notice of the contents of such materials. Such 
actual and timely notice may not be after-the-fact; i.e., after the 
individual has suffered some adverse effect. Materials identified as 
``(a)(2)'' are:
    (i) Final opinions, including concurring and dissenting opinions, 
and orders made in the adjudication of cases, as defined in 5 U.S.C. 
551, that may be cited, used, or relied upon as precedents in future 
adjudications.
    (ii) Statements of policy and interpretations that have been adopted 
by the agency and are not published in the Federal Register.
    (iii) Administrative staff manuals and instructions, or portions 
thereof, that establish OIG policy or interpretations of policy that 
affect a member of the public. This provision does not apply to 
instructions for employees on tactics and techniques to be used in 
performing their duties, or to instructions relating only to the 
internal management of the OIG. Examples of manuals and instructions not 
normally made available are:
    (A) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (B) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.
    (2) Thus, materials considered to meet the preceding definition of 
the FOIA ``(a)(2)'' requirements will be made available for public 
inspection and copying upon written request to the address indicated in 
Sec. 295.7(b)(1) of this part, unless such materials have been 
published and are offered for sale or subscription. Upon receipt of the 
request, arrangements will be made at a time convenient to both the 
requester and the OIG, for the review and copying. If the publishing 
activity is out of stock of the published, for sale material and does 
not intend to reprint, then the preceding procedure will apply to the 
published material as well.
    (3) When appropriate, the cost of copying any ``(a)(2)'' materials 
will be

[[Page 792]]

imposed upon the individual requesting the copy in accordance with 
chapter VI of DoD 5400.7-R (32 CFR part 286).
    (4) The OIG will prepare an index of ``(a)(2)'' materials, or 
supplement thereto, arranged topically or by descriptive words rather 
than by case name or numbering system so that members of the public can 
readily locate material. Separate case name and numbering arrangements 
may be added for OIG convenience.
    (5) The IG has determined that it is not practical nor feasible to 
prepare an index of the ``(a)(2)'' materials on a quarterly basis, nor 
to publish the annual ``IG Publications Index'' in the Federal Register 
because of the volume. This index is available to the public at no cost 
upon written request to: Acquisition and Resources Administration 
Directorate, Publications Management Branch, room 413, 400 Army Navy 
Drive, Arlington, Virginia 22202-2884. It may be necessary to deny all 
or portions of some documents listed in the index that fall within one 
or more exemptions of the FOIA.
    (o) Fees and Fee Waivers. (1) Fees will be assessed under the FOIA 
as set forth in chapter VI of DoD 5400.7-R (32 CFR part 286).
    (2) Requesters must indicate their willingness to pay fees in their 
initial FOIA request. If a waiver of fees is requested, a statement 
regarding their willingness to pay fees in the event a waiver or 
reduction of fees is denied is still required. Any requests not 
containing a statement regarding a willingness to pay assessed fees will 
not be processed and the requester will be so advised.
    (3) Fees will not be required to be paid in advance of processing 
the request for release of the records requested except:
    (i) When the requester is known to be in default of payment of fees 
incurred in connection with a previous request.
    (ii) When the total amount of estimated fees assessable to the 
requester exceeds $250.00 and waiver is not appropriate, a ``good 
faith'' deposit of half of the amount of the estimated fees may be 
required before completing the processing of the request, or providing 
the requested records, in the case of a requester with no history of 
payment. Where the requester has a history of prompt payment, the OIG 
will notify the requester of the likely cost and obtain satisfactory 
assurance of full payment.
    (4) When the OIG has completed all work on a request and the 
documents are ready for release, advance payment may be requested before 
forwarding the documents if there is no payment history on the 
requester. Where there is a history of prompt payment by the requester, 
the OIG will not hold documents ready for release pending payment.
    (5) Fee waivers will be granted on a case-by-case basis when the OIG 
determines that waiver or reduction of the fees is in the public 
interest because furnishing the information is likely to contribute 
significantly to public understanding of the operations or activities of 
the OIG and the Department of Defense and is not primarily in the 
commercial interest of the requester. In any request for waiver of fees, 
the requester must provide sufficient information to enable the IDA to 
make a proper determination of whether or not the fees should be waived.
    (6) In cases where the requester fails to provide sufficient 
persuasive information upon which to make a determination for waiver of 
the fees, the requester shall be so informed and given the opportunity 
to submit additional justification. Absent such justification, the 
requester may be required to pay fees appropriate to his/her category, 
if provision of the information is determined not to be in the public 
interest or benefit.
    (7) Payments of fees must be by check or U.S. Postal money order 
made payable to the Treasurer of the United States. Cash payments cannot 
be accepted.
    (p) Appeals and Judicial Action. (1) If the designated IDA declines 
to provide a requested record because the official considers it exempt 
from disclosure under one or more of the nine exemptions of the FOIA, 
that decision may be appealed by the requester to the designated 
Appellate Authority. The appeal should be submitted in writing by the 
requester within 60 calendar days after the date of the initial denial 
letter. In cases where incremental release

[[Page 793]]

actions have been taken on an initial request, the time for the appeal 
will not begin until the date of the last denial of release letter.
    (2) A ``no record'' finding may be considered to be adverse, and if 
so interpreted by the requester, may be appealed using the normal OIG 
appeal procedures. The OIG will conduct an additional search of files, 
based on the receipt of an appeal to a ``no record'' response, as a part 
of the appellate process.
    (3) All final decisions rendered on appeals will be made to the 
requesters in writing by the Appellate Authority, after consultation 
with the Office of General Counsel (OGC) representative to the OIG, and 
other appropriate OIG elements.
    (4) Final determinations on appeals normally shall be made within 20 
working days after receipt. The appeal will be deemed to have been 
received when it reaches the FOIA/PA Division, for administrative 
processing on behalf of the Appellate Authority. Misdirected appeals are 
to be referred expeditiously to the FOIA/PA Division.
    (5) A requester will be deemed to have exhausted his/her 
administrative remedies after he/she has been denied the requested 
record or waiver/reduction of fees, by the designated Appellate 
Authority, or when the OIG FOIA/PA Division fails to respond to the 
request within the time limits prescribed by the FOIA, DoD 5400.7-R (32 
CFR part 286) and this part. The requester may then seek judicial action 
from a U.S. Distrist Court in the district in which the requester 
resides, has a principal place of business, in the district in which the 
record is located, or in the District of Columbia.
    (6) Records that are denied on appeal shall be retained for a period 
of six years, in accordance with IGDM 5015.2,\2\ ``Records Management 
Manual,'' to meet the statute of limitations of claims requirements.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 295.5(1).
---------------------------------------------------------------------------

                         Appendix to Sec. 295.5

                                 Extract

    The material contained herein is an Extract of information from 
(Name of Original Document), which has been determined to be in the 
public domain. The remaining material not provided herein may be 
requested under the provisions of the Freedom of Information Act.



Sec. 295.6  Responsibilities.

    (a) The Assistant Inspector General (AIG) for Investigations is 
responsible for the overall implementation and administration of the 
FOIA program in the OIG, and for the designation of the IDAs.
    (b) The Director, Investigative Support is designated as an IDA and 
is responsible for the overall operation of the FOIA program in the OIG.
    (c) The Assistant Director, FOIA/PA Division, Investigative Support 
Directorate is designated as an IDA and will:
    (1) Serve as the point of contact on all FOIA matters for the OIG.
    (2) Coordinate and respond to all requests received from the public 
for records in accordance with the policy established and procedures set 
forth in this part, and in all applicable DoD directives, regulations 
and instructions.
    (3) Coordinate requests received from the public for records to the 
extent considered necessary, with the DFOISR, OASD(PA), other DoD 
Components, other Federal agencies, and other OIG elements.
    (4) Arrange for the collection of fees are prescribed by the policy 
as established in this part.
    (5) Maintain the FOIA case files in accordance with IGD Manual 
(IGDM) 5015.2,\3\ ``Records Management Program''.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 295.5(1).
---------------------------------------------------------------------------

    (6) Recommend action to be taken on all appeals of fees, appeals of 
fee waiver denials, and appeals of denials to access of records 
requested, to the Appellate Authority.
    (7) Review OIG publications to assure that those which meet the FOIA 
``(a)(1)'' and ``(a)(2)'' requirements for publication in the Federal 
Register are prepared in proper form and transmitted promptly for 
publication in the Federal Register.
    (8) Maintain copies of material required to be made available under 
the ``(a)(2)'' provisions of the FOIA for examination and copying by the 
public,

[[Page 794]]

and provide the required FOIA Reading Room for use by the public in 
doing so.
    (9) Establish a training program for OIG personnel who are involved 
in preparing responsive records for release to the public under the 
FOIA.
    (10) Prepare the Annual Report on the FOIA for forwarding to DFOISR, 
OASD(PA) as required by 32 CFR part 286.
    (d) The AIGs and the Director, IG Regional Office-Europe will:
    (1) Comply with, and assure compliance by all of their subcomponents 
with, the policy established and the procedures set forth in this part.
    (2) Appoint a Point of Contact (POC) to interact with the FOIA/PA 
Division on all FOIA matters, and notify the FOIA/PA Division of any 
changes in the appointment.
    (3) Provide all records responsive to a request as directed by the 
FOIA/PA Division.
    (4) Recommend release/denial action to be taken, indicate applicable 
exemptions, and provide appropriate rationales.
    (e) The Freedom of Information Act Appellate Authority is designated 
by the Inspector General and will:
    (1) Determine the action to be taken on all appeals made by the 
public of fees, fee waiver/reduction denials, and access denials in 
accordance with chapter V, section 3, of DoD 5400.7-R (32 CFR part 286).
    (2) Coordinate all appellate decisions with the Office of General 
Counsel, Assistant General Counsel (Fiscal and Inspector General).
    (f) The AIG for Administration and Information Management will:
    (1) Prepare annually an index of IG publications, statements and 
documents pertaining to any matter issued, adopted, or promulgated and 
required to be made available to the public by publication or sale.
    (2) Establish and implement any necessary procedures to effect 
disciplinary action recommended by the Special Counsel of the Merit 
Systems Protection Board in cases involving the arbitrary and capricious 
withholding of information and records requested under the FOIA as 
required by chapter V, section 4, of DoD 5400.7-R (32 CFR part 286).



Sec. 295.7  Procedures.

    (a) General. The provisions of the FOIA are reserved for persons 
with private interests as opposed to Federal governmental agencies 
seeking official information. The procedures for making requests, 
whether as a private party or governmental representative, are set forth 
below.
    (b) Requests From Private Parties. (1) Members of the public may 
make requests in writing for copies of records, or permission to examine 
or copy records, directly to the FOIA/PA Division addressed to: 
Assistant Director, FOIA/PA Division, OAIG for Investigations, 400 Army 
Navy Drive, Arlington, VA 22202-2884.
    (2) Requests must identify each record sought with sufficient 
specificity to enable the custodian to locate the record with a 
reasonable amount of effort. Requesters should provide such information 
as where the record originated and by whom, its subject matter, its 
approximate date or timeframe, which element of the OIG is likely to 
have custodianship, or any other similar information that would assist 
in locating the record. Requests must also contain a statement regarding 
willingness to pay fees.
    (3) A request from an individual who made an allegation of 
wrongdoing to the IG, or any protected disclosure under the 
``Whistleblower Protection Acts,'' and who is seeking the results of any 
investigation or inquiry conducted into the allegation, should identify 
him/herself as the ``Whistleblower'' in the request. The request should 
indicate whether he/she wishes to continue anonymity, should be 
notarized to avoid the risk of losing the anonymity, and should contain 
a statement regarding willingness to pay fees.
    (4) A request for a personal record or investigative record 
pertaining to the individual making the request, that is in a system of 
records whether nonexempt or exempted from mandatory release under the 
Privacy Act, must be notarized to avoid the risk of invasion of personal 
privacy. In any such request, the individual may designate another 
individual to act as his/her representative in making the request and in 
receiving the records on his/her behalf; however, the authorization must

[[Page 795]]

be in writing, specifically name the representative and kinds of records 
authorized to be provided, and be notarized to avoid the risk of 
invasion of personal privacy.
    (5) A request for a record that was obtained from a non-U.S. 
Government source, and that is subject to exemption (b)(4) under the 
FOIA, will be released to the individual or firm making the request 
without further exception, if:
    (i) The individual or firm is clearly the submitter of the 
information and/or is clearly acting on behalf of the submitter in 
making the request.
    (ii) The request contains a statement from a company official or 
other representative of the submitter clearly capable of certifying that 
the requester is acting on behalf of the submitter of the information in 
making the request; i.e., a Vice-President certifies on his/her company 
letterhead that XYZ Law Firm is acting on behalf of the company in 
requesting copies of documents submitted to the government by the 
company. A mere assertion by the requester that the requester is acting 
on behalf of the submitter in making the request will not be honored, if 
it cannot be readily verified through records available to the OIG.
    (c) Requests From Government Officials. (1) Requests from officials 
of State, or local Governments for OIG records will be considered the 
same as any other requester, except where the request is for a personal 
record in a system of records subject to the Privacy Act, in which case 
the provisions of DoD 5400.11-R (32 CFR part 286a) apply.
    (2) Requests from members of Congress, or their staffs, not seeking 
records on behalf of a Congressional Committee, Subcommittee, or either 
House sitting as a whole, will be considered the same as any other 
requester. Requests from members of Congress, or their staffs, made on 
behalf of their constituents will also be considered the same as any 
other requester.
    (3) Requests from officials of foreign governments shall be 
considered the same as any other requester. Requests from officials of 
foreign governments that do not invoke the FOIA shall be referred to 
appropriate foreign disclosure channels and the requester so notified.
    (d) Misdirected Requests. Requests misdirected to other OIG elements 
will be forwarded promptly to the FOIA/PA Division. The statutory period 
allowed for response to a request misdirected by the requester shall not 
begin until the request is received in the FOIA/PA Division. The OIG 
components and field elements receiving misdirected requests should 
advise the requester that the request is being forwarded to the office 
having the authority to act on and respond to the request.
    (e) Privileged Release to Officials. (1) Subject to DoD 5200.1-R,\4\ 
``Information Security Program Regulation'', applicable to classified 
information, DoD Directive 5400.11 (32 CFR part 286a), applicable to 
personal privacy or other applicable law, records exempt from release 
under appendix B of this part may be authenticated and released, without 
requiring release to other FOIA requesters, in accordance with OIG rules 
to U.S. Government officials requesting them on behalf of Federal 
governmental bodies, whether legislative, executive, administrative, or 
judicial, as follows:
---------------------------------------------------------------------------

    \4\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (i) To a Committee or Subcommittee of Congress, or to either House 
sitting as a whole in accordance with DoD Directive 5400.4,\5\ 
``Provision of Information to Congress,'' and this part.
---------------------------------------------------------------------------

    \5\ See footnote 4 to Sec. 295.7(e).
---------------------------------------------------------------------------

    (ii) To the Federal courts whenever ordered by officers of the court 
as necessary for the proper administration of justice
    (iii) To other Federal agencies both executive and administrative as 
determined by the IG or the IG's designee.
    (2) On all such releases, the officials receiving records under the 
above provisions will be informed in writing that the records are exempt 
from public release under the FOIA and are privileged. The OIG 
components will also advise the receiving officials of any special 
handling instructions.
    (f) Processing Requests. (1) Upon receipt in the FOIA/PA Division, a 
request for records will be assigned a control number, logged, and 
reviewed

[[Page 796]]

for adequacy and compliance with the procedures for submitting requests 
outlined in Sec. 295.7(b).
    (2) If the request does not meet the adequacy of description test, 
contain a statement regarding fees, or contain a notarized signature/
authorization or a certification of submitter representation, if 
applicable; the request will be acknowledged as having been received and 
the requester will be notified of the defect and advised of the means 
necessary to correct the defect and comply with the procedures. If the 
requester does not correct the defect within the time allowed (generally 
30 calendar days) in the defect notice, the following actions will be 
taken:
    (i) Where the request does not meet the adequacy of description 
test, the request will be administratively closed and the requester so 
advised.
    (ii) Where the request meets the adequacy of description test but 
fails to comply with the remaining procedural requirements, and the time 
allowed in the defect notice for compliance by the requester has 
elapsed, the request will be processed to the extent possible consistent 
with DoD 5400.7-R (32 CFR part 286) and this part.
    (3) When it is determined that a request complies with all 
applicable procedures, the necessary search and collection of responsive 
records will be initiated through the Component(s) of the OIG likely to 
have custodianship of the sought records.
    (4) Where the appropriate OIG Component has determined that no 
record responsive to the request exists, the POC for the OIG Component 
will so advise the FOIA/PA Division within the due date assigned to the 
POC. The requester will be notified in writing by the IDA, within 10 
working days from the date of receipt of the request, that no responsive 
records exist; and, of the right and means by which to appeal the no 
record response as an adverse determination.
    (5) When it is determined that the records sought are part of an 
ongoing audit, inspection, or investigation, the requester will be 
advised of such (subject to the ``Exclusions'' under the FOIA identified 
in appendix B, of this part). The requester will be informed of the 
estimated timeframe for completion of the ongoing audit, inspection, or 
investigation and asked if he/she wishes to withdraw the request and 
resubmit it upon completion of the ongoing process. If the requester 
chooses not to withdraw the request, the processing will be continued 
and an appropriate release determination will be made, consistent with 
the statutory provisions of the FOIA.
    (6) When responsive records have been located, the POC for the OIG 
element having the records will forward the records to the FOIA/PA 
Division with a recommendation for release on SD Form 472, ``Request 
Information Sheet,'' along with a completed DD Form 2086. ``Record of 
Freedom of Information (FOI) Processing Cost.'' The records will be 
reviewed and an initial determination to release or deny will be made.
    (g) Initial Determinations. (1) The initial determination of whether 
to make a record available upon request may be made only by the IDAs 
designated by the IG in this part. Further, the number of IDAs 
designated by the IG will be limited and based on a balance of the goals 
of centralization of authority to promote uniform decisions and 
decentralization to facilitate responding to each request within the 
time limitations of the FOIA.
    (2) Other than statutory denials, there are six other reasons for 
not complying with a request for a record:
    (i) The request is transferred to another DoD Component or Federal 
agency.
    (ii) The request is withdrawn by the requester.
    (iii) The information requested is not a record within the meaning 
of the FOIA and Sec. 295.3(a) of this part.
    (iv) A record has not been described with sufficient particularity 
to enable those that OIG to locate it by conducting a reasonable search.
    (v) The requester has failed unreasonably to comply with the 
procedural requirements, including the payment of fees, imposed by 32 
CFR part 286 and this part.
    (vi) The OIG has determined through knowledge of its files and 
reasonable search efforts that it neither controls nor possesses the 
requested record.

[[Page 797]]

    (3) Initial determinations to release or deny a record normally will 
be made and the decision reported to the requester within 10 working 
days, provided that the requester has complied with the preliminary 
procedural requirements.
    (4) When requests are denied in whole in part, the requester will be 
informed in writing of the reasons for the denial, the identity of the 
official making the denial, the right of appeal of the decision, and the 
identity and address of the official to whom an appeal may be made.
    (5) The explanation of the substantive basis for a denial will 
include specific citation of the statutory exemption applied under 
provisions of the FOIA. Mere reference to a classification or to a ``For 
Official Use Only'' marking will not constitute a basis for invoking an 
exemption. When the initial denial is based in whole or in part on a 
security classification, the explanation will include a summary of the 
applicable criteria for the classification.
    (h) Denial Tests. (1) To deny a requested record that is in the 
possession and control of the OIG, it must be determined that the record 
is included in one or more of the nine categories of records exempt from 
mandatory disclosure as provided by the FOIA and outlined in chapter III 
of DoD 5400.7-R (32 CFR part 286), and this part. No OIG record may be 
otherwise withheld from the public, whether in whole or in part, except 
as determined by the designated IDAs in accordance with FOIA exemptions.
    (2) Although portions of some records may be denied, the remaining 
reasonably segregable portions will be released to the requester when it 
can be assumed that a skillful and knowledgeable person could not 
reconstruct the excised information. When a record is denied in whole, 
the IDA will advise the requester of that determination.
    (i) Extension of Time. (1) In unusual circumstances, responsive 
records may be located by the office having custodianship over the 
record, but the records can not be made immediately available to the 
FOIA/PA Division, or the FOIA/PA Division can not make them immediately 
available to the requester. The unusual circumstances justifying the 
delay will be the result of the following:
    (i) The requested record is located in whole or in part at another 
geographic location than that of the FOIA/PA Division.
    (ii) The request requires the collection and/or evaluation of a 
substantial number of records.
    (iii) Consultation is required with other DoD Components or agencies 
having substantial interest in the subject matter to determine whether 
the records requested are exempt from disclosure in whole or in part 
under provisions of the FOIA and this part or should be released as a 
matter of discretion.
    (2) In any such event, efforts will be made to negotiate an informal 
extension in time with the requester by the FOIA/PA Division. If the 
requester chooses not to agree informally to an extension in time, a 
written explanation of the reasons for delay will be provided to the 
requester and the requester will be asked to await a substantive 
response by an anticipated date.
    (j) Fee Assessments. (1) When it is determined that the fees 
assessable to a request undergoing final processing may exceed the limit 
established by the requester, or may be in excess of $250, the 
processing will be discontinued and the requester notified so that he/
she may advise of his/her desire to continue.
    (2) If a ``good faith'' deposit is required, the requester will be 
allowed a reasonable time (generally 30 calendar days) in which to 
provide payment. If the requester fails to provide the ``good faith'' 
deposit within the time allowed, the request will be closed and the 
requester so notified.
    (3) In all other cases, the requester will be notified of any fees 
due at the time the requested records are provided to the requester, and 
allowed a reasonable time (generally 30 calendar days) in which to pay 
the fees.
    (4) If the requester fails to pay the fees in the time allowed, a 
notice of nonpayment will be placed in the formal control system and no 
further FOIA requests from the requester will

[[Page 798]]

be honored until the fees have been paid.
    (k) Records on Non-U.S. Government Sources. (1) When it is 
determined that the records or data contained within the records 
responsive to a request were obtained from a non-U.S. Government source 
by the OIG, and the requester is not the submitter of the non-U.S. 
Government record nor acting as the submitter's representative; and it 
is further determined the source or submitter may have a valid objection 
to release of the material, the submitter will be promptly notified of 
the request and afforded a reasonable time (generally 30 calendar days) 
to present any objections to the release.
    (2) This procedure is required for those FOIA requests for data not 
deemed clearly exempt from disclosure under exemption (b)(4). If, for 
example, the record or data was submitted by the non-U.S. Government 
source with the actual or presumptive knowledge of the source, and 
established that it would be made available to the public upon request, 
there is no requirement to notify the source.
    (3) All objections will be evaluated. When a substantial issue has 
been raised, the OIG may seek additional information and afford the 
source and requester reasonable opportunities to present their arguments 
on the legal and substantive issues involved prior to making a 
determination.
    (4) The OIG will not ordinarily exercise its discretionary authority 
to release information clearly meeting the exemption (b)(4) criteria. 
Further, the final decision to disclose information not deemed to 
clearly meet exemption (b)(4) criteria will be made by an official 
equivalent in rank or greater to the official who would make the 
decision to withhold that data under a FOIA appeal.
    (5) When the source or submitter advises of the intent to seek a 
restraining order or to take court action to prevent release of the 
data, the requester will be notified and action will not be taken on the 
request until after the outcome of the court action is known. When the 
requester brings court action to compel disclosure, the source shall be 
promptly notified of this action.
    (6) These procedures also apply to any non-U.S. Government record in 
the possession and control of the OIG from multi-national organizations, 
such as the North Atlantic Treaty Organization (NATO) and the North 
American Aerospace Defense Command (NORAD), or foreign governments. 
Coordination of such FOIA requests with foreign governments will be made 
through the Department of State by the FOIA/PA Division.
    (l) Coordination With Department of Justice. (1) Where the custodian 
of an OIG element determines that records responsive to a FOIA request 
are pertinent to pending or potential litigation involving the United 
States, the FOIA/PA POC for the element shall promptly notify the FOIA/
PA Division so that the necessary coordination can be effected with the 
Office of General Counsel (OGC) representative to the IG.
    (2) The OGC representative shall effect all necessary coordination 
with the United States Attorney and/or Department of Justice prior to 
any release of such records.
    (m) Procedures for Appeals. (1) A requester may appeal the initial 
decision to deny access to requested records, in writing, to the 
designated OIG Appellate Authority. The requester may also appeal a no 
record determination, any fees assessed and the denial of a request for 
waiver/reduction of fees. All such appeals should be made no later than 
60 calendar days after the date of the initial denial letter or letter 
of advisement regarding fees.
    (2) All appeals should provide sufficient information and 
justification upon which a determination may be made by the Appellate 
Authority as to whether to grant or deny the appeal; or, in the event of 
a ``no record determination'' sufficient information and/or 
justification upon which additional record searches may be based. A copy 
of the initial request and initial denial, and ``no record'' or fee 
advisement letter should be included.
    (3) The FOIA/PA Division administers the appeals for the Appellate 
Authority. All appeals should be addressed to the Assistant Director, 
FOIA/PA Division, OAIG for investigations, 400 Army Navy Drive, 
Arlington, VA 22202-2884.

[[Page 799]]

    (4) Upon receipt in the FOIA/PA Division, the appeal will be 
assigned a control number, logged, and prepared for provision to the 
Appellate Authority for a final determination. Receipt will be 
acknowledged in writing within 10 working days and the requester advised 
of any additional time needed due to the unusual circumstances described 
in Sec. 295.7(i) of this part.
    (5) If additional time is required, the final decision may be 
delayed for the number of working days (not to exceed 10) that were not 
used as additional time for responding to the initial request. If no 
additional time is required, the requester will be advised in writing of 
the final decision within 20 working days.
    (6) If the appeal is approved in part or in whole, or responsive 
records located upon additional search, the requester will be informed 
and promptly provided any records determined to be releasable.
    (7) If ``no records'' can be located in response to the appeal, the 
requester will be informed that no records were located, of the identity 
of the official making the final determination, and of the right to 
judicial review.
    (8) If the appeal of the initial denial of responsive records is 
denied in part or in whole, the requester will be advised of the 
applicable statutory exemption or exemptions invoked under the 
provisions of the FOIA for the denial, the identity of the official 
making the final determination, that meaningful portions of any denied 
records were not reasonably segregable, and of the right to judicial 
review.
    (9) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the cited criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review, with an explanation of how that review 
confirmed the continuing validity of the security classification.
    (10) Final refusal involving issues not previously resolved or that 
the OIG knows to be inconsistent with rulings of other DoD components 
ordinarily will not be made before consultation with the Assistant 
General Counsel (Fiscal and Inspector General), OGC, DoD.
    (11) Tentative decisions to deny records that raise new or 
significant legal issues of potential significance to other agencies of 
the Government shall be provided to the Department of Justice, Attn: 
Office of Legal Policy, Office of Information and Policy, Washington, DC 
20530 after coordination with the Assistant General Counsel (Fiscal and 
Inspector General), OGC, DoD.



Sec. 295.8  Annual report.

    The FOIA Annual Report, assigned Report Control System DD-PA (A) 
1365, will be prepared by the FOIA/PA Division for the preceding 
calendar year and submitted to the Assistant Secretary of Defense (PA) 
on or before February 1 of each year. The report will be compiled and 
formatted in accordance with chapter VII, DoD 5400.7-R (32 CFR part 
286).



Sec. 295.9  Organization and mission.

    (a) The organization of the OIG includes the Headquarters located in 
Arlington, Virginia, consisting of the Inspector General, Deputy 
Inspector General, the Offices of the Assistant Inspector General (AIG) 
for Analysis and Followup, the AIG for Audit Policy and Oversight, the 
AIG for Auditing with its subordinate field elements located throughout 
the Continental United States (CONUS), the AIG for investigations with 
its field elements located throughout the CONUS and Europe, the AIG for 
Administration and Information Management, the AIG for Departmental 
Inquiries, the AIG for Inspections, and the Director, IG Regional 
Office-Europe (IGROE) located in Wiesbaden, Germany. The IGROE has 
representatives assigned from the Offices of the AIG for Investigations, 
the AIG for Inspections, the AIG for Auditing and the AIG for 
Departmental Inquiries, who fulfill the missions of their respective 
components.
    (b) The ``Organization and Staff Listing'' (Inspector General, 
Defense List (IGDL) 1400.7),\6\ provides organization

[[Page 800]]

charts for the OIG elements and mailing addresses of all OIG operating 
locations and will be made available to the public upon written request.
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    \6\ See footnote 1 to Sec. 295.5(i).
---------------------------------------------------------------------------

    (c) As an independent and objective office in the Department of 
Defense (DoD) the mission of the OIG is to:
    (1) Conduct, supervise, monitor, and initiate audits, inspections 
and investigations relating to programs and operations of the DoD.
    (2) Provide leadership and coordination and recommend policies for 
activities designed to promote economy, efficiency, and effectiveness in 
the administration of, and to prevent and detect fraud and abuse in, 
such programs and operations.
    (3) Provide a means for keeping the Secretary of Defense and the 
Congress fully and currently informed about problems and deficiencies 
relating to the administration of such programs and operations and the 
necessity for and progress of corrective action.
    (4) Further information regarding the responsibilities and functions 
of the IG is encompassed in Public Law 95-452, the ``Inspector General 
Act of 1978,'' as amended and 32 CFR part 373.

          Appendix A to Part 295--For Official Use Only (FOUO)

                          I. General Provisions

                               A. General

    Information that has not been given a security classification 
pursuant to the criteria of an Executive Order, but which may be 
withheld from the public for one or more of the reasons cited in FOIA 
exemptions (b)(2) through (b)(9) shall be considered as being for 
official use only. No other material shall be considered or marked ``For 
Official Use Only'' (FOUO), and FOUO is not authorized as an anemic form 
of classification to protect national security interests.

                        B. Prior FOUO Application

    The prior application of FOUO markings is not a conclusive basis for 
withholding a record that is requested under the FOIA. When such a 
record is requested, the information in it shall be evaluated to 
determine whether, under current circumstances, FOIA exemptions apply in 
withholding the record or portions of it. If any exemption or exemptions 
apply or applies, it may nonetheless be released when it is determined 
that no governmental interest will be jeopardized by its release.

                          C. Historical Papers

    Records such as notes, working papers, and drafts retained as 
historical evidence of actions enjoy no special status apart from the 
exemptions under the FOIA.

                         D. Time to Mark Records

    The marking of records at the time of their creation provides notice 
of FOUO content and facilitates review when a record is requested under 
the FOIA. Records requested under the FOIA that do not bear such 
markings, shall not be assumed to be releasable without examination for 
the presence of information that requires continued protection and 
qualifies as exempt from public release.

                        E. Distribution Statement

    Information in a technical document that requires a distribution 
statement pursuant to DoD Directive 5230.24,\1\ ``Distribution 
Statements on Technical Documents'', shall bear that statement and may 
be marked FOUO, as appropriate.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

                              II. Markings

                         A. Location of Markings

    (1) An unclassified document containing FOUO information shall be 
marked ``For Official Use Only'' at the bottom on the outside of the 
front cover (if any), on each page continuing FOUO information, and on 
the outside of the back cover (if any).
    (2) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information appearing 
on the page.
    (3) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the bottom of the page.
    (4) Other records, such as, photographs, films, tapes, or slides, 
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that 
ensures that a recipient or viewer is aware of the status of the 
information therein.
    (5) The FOUO material transmitted outside the Department of Defense 
requires application of an expanded marking to explain the significance 
of the FOUO marking. This may be accomplished by typing or stamping the 
following statement on the record prior to transfer:

This document contains information
EXEMPT FROM MANDATORY DISCLOSURE

[[Page 801]]

under the FOIA. Exemptions . . . . . apply

                   III. Dissemination and Transmission

                 A. Release and Transmission Procedures

    Until FOUO status is terminated, the release and transmission 
instructions that follow apply:
    (1) The FOUO information may be disseminated within DoD Components 
and between officials of DoD Components and DoD contractors, 
consultants, and grantees to conduct official business for the 
Department of Defense. Recipients shall be made aware of the status of 
such information, and transmission shall be by means that preclude 
unauthorized public disclosure. Transmittal documents shall call 
attention to the presence of FOUO attachments.
    (2) The DoD holders of FOUO information are authorized to convey 
such information to officials in other departments and agencies of the 
executive and judicial branches to fulfill a Government function, except 
to the extent prohibited by the Privacy Act. Records thus transmitted 
shall be marked ``For Official Use Only'', and the recipient shall be 
advised that the information has been exempted from public disclosure, 
pursuant to the FOIA, and that special handling instructions do or do 
not apply.
    (3) Release of FOUO information to Members of Congress is governed 
by DoD Directive 5400.4,\2\ ``Provision of Information to Congress''. 
Release to the GAO is governed by DoD Directive 7650.1,\3\ ``General 
Accounting Office Access to Records''. Records released to the Congress 
or GAO should be reviewed to determine whether the information warrants 
FOUO status. If not, prior FOUO markings shall be removed or effaced. If 
withholding criteria are met, the records shall be marked FOUO and the 
recipient provided an explanation for such exemption and marking. 
Alternatively, the recipient may be requested, without marking the 
record, to protect against its public disclosure for reasons that are 
explained.
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    \2\ See footnote 1 to section I.E. of this appendix.
    \3\ See footnote 1 to section I.E. of this appendix.
---------------------------------------------------------------------------

                    B. Transporting FOUO Information

    Records containing FOUO information shall be transported in a manner 
that precludes disclosure of the contents. When not commingled with 
classified information, FOUO information may be sent via first-class 
mail or parcel post. Bulky shipments, such as distributions of FOUO 
Directives or testing materials, that otherwise qualify under postal 
regulations may be sent by fourth-class mail.

                  C. Electrically Transmitted Messages

    Each part of electrically transmitted messages containing FOUO 
information shall be marked appropriately. Unclassified messages 
containing FOUO information shall contain the abbreviated ``FOUO'' 
before the beginning of the text. Such messages shall be transmitted in 
accordance with communications security procedures in ACP-121 (United 
States Supplement 1) for FOUO information.

                    IV. Safeguarding FOUO Information

                          A. During Duty Hours

    During normal working hours, records determined to be FOUO shall be 
placed in an out-of-sight location if the work area is accessible to 
non-governmental personnel.

                        B. During Non-Duty Hours

    At the close of business, FOUO records shall be stored so as to 
preclude unauthorized access. Filing such material with other 
unclassified records in unlocked files or desks, etc., is adequate when 
normal U.S. Government or government-contractor internal building 
security is provided during nonduty hours. When such internal security 
control is not exercised, locked buildings or rooms normally provide 
adequate after-hours protection. If such protection is not considered 
adequate, FOUO material shall be stored in locked receptacles such as 
file cabinets, desks, or bookcases. FOUO records that are subject to the 
provisions of Public Law 86-36, National Security Agency Act shall meet 
the safeguards outlined for that group of records.

          V. Termination, Disposal and Unauthorized Disclosures

                             A. Termination

    The originator or other component authority, e.g., initial denial 
and appellate authorities, shall terminate ``For Official Use Only'' 
markings or status when circumstances indicate that the information no 
longer requires protection from public disclosure. When FOUO status is 
terminated, all known holders shall be notified, to the extent 
practical. Upon notification, holders shall efface or remove the ``For 
Official Use Only'' markings, but records in file or storage need not be 
retrieved solely for that purpose.

                               B. Disposal

    (1) Nonrecord copies of FOUO materials may be destroyed by tearing 
each copy into pieces to preclude reconstructing, and placing them in 
regular trash containers. When local circumstances or experience 
indicates that this destruction method is not sufficiently protective of 
FOUO information, local authorities may direct other methods but give 
due consideration to the additional

[[Page 802]]

expense balanced against the degree of sensitivity of the type of FOUO 
information contained in the records.
    (2) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 
chapter 33, as implemented by Inspector General Defense Manual (IGDM) 
5015.2,\4\ ``Records Management Program''.
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    \4\ Copies may be obtained, if needed, from the Information and 
Operations Support Directorate, Publications Management Branch, room 
420, 400 Army Navy Drive, Arlington, VA 22202-2884.
---------------------------------------------------------------------------

                       C. Unauthorized Disclosure

    The unauthorized disclosure of FOUO records does not constitute an 
unauthorized disclosure of DoD information classified for security 
purposes. Appropriate administrative action shall be taken, however, to 
fix responsibility for unauthorized disclosure whenever feasible, and 
appropriate disciplinary action shall be taken against those 
responsible. Unauthorized disclosure of FOUO information that is 
protected by the Privacy Act may also result in civil and criminal 
sanctions against responsible persons. The DoD Component that originated 
the FOUO information shall be informed of its unauthorized disclosure.

                   Appendix B to Part 295--Exemptions

                               I. General

    The exemptions listed apply to categories of records that may be 
withheld in whole or in part from public disclosure, unless otherwise 
prescribed by law. A discretionary release (see also Sec. 295.5(e) of 
this part) to one requester may preclude the withholding of the same 
record under a FOIA exemption if the record is subsequently requested by 
someone else. In applying the exemptions, the identity of the requester 
and the purpose for which the record is sought are irrelevant with the 
exception that an exemption may not be invoked where the particular 
interest to be protected is the requester's interest. The examples 
provided of the types of records that may be exempted from release are 
not at all inclusive.

                           II. FOIA Exemptions

                          A. Exemption (b)(1).

    Those properly and currently classified in the interest of national 
defense or foreign policy, as specifically authorized under the criteria 
established by executive order and implemented by regulations, such as 
DoD 5200.1-R \1\ (32 CFR part 159a), ``Information Security Program 
Regulation''. Although material is not classified at the time of the 
FOIA request, a classification review may be undertaken to determine 
whether the information should be classified. The procedures in DoD 
5200.1-R, section 2-204f, apply, In addition, this exemption shall be 
invoked when the following situations are apparent:
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    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, the OIG shall 
neither confirm nor deny the existence or nonexistence of the record 
being requested. A ``refusal to confirm or deny'' response will be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no record'' response when 
a record does not exist will itself disclose national security 
information.
    (2) Information that concerns one or more of the classification 
categories established by executive order and DoD 5200.1-R (32 CFR part 
159a) shall be classified if its unauthorized disclosure, either by 
itself or in the context of other information, reasonably could be 
expected to cause damage to the national security.

                           B. Exemption (b)(2)

    Those related solely to the internal personnel rules and practices 
of DoD or the OIG. This exemption has two profiles, high (b)(2) and low 
(b)(2).
    (1) Records qualifying under high (b)(2) are those containing or 
constituting statutes, rules, regulations, orders, manuals, directives, 
and instructions the release of which would allow circumvention of these 
records, thereby substantially hindering the effective performance of a 
significant function of the DoD or OIG. Examples include:
    (a) Those operating rules, guidelines, and manuals, for DoD and OIG 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the OIG to fulfill a legal requirement.
    (b) Personnel and other administrative matters, such as examination 
questions and answers used in training courses or in the determination 
of the qualification of candidates for employment, entrance on duty, 
advancement, or promotion.
    (c) Computer software meeting the standards of Sec. 295.3(c) of 
this part, the release of which would allow circumvention of a statute 
or DoD rules, regulations, orders, manuals, directives, or instructions. 
In this situation, the use of the software must be closely examined to 
ensure a circumvention possibility exists.
    (2) Records qualifying under the low (b)(2) profile are those that 
are trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request

[[Page 803]]

in order to disclose the records. Examples include: rules of personnel's 
use of parking facilities or regulation of lunch hours, statements of 
policy as to sick leave, and trivial administrative data such as file 
numbers, mail routing stamps, initials, data processing notations, brief 
references to previous communications, and other like administrative 
markings.

                           C. Exemption (b)(3)

    Those concerning matters that a statute specifically exempts from 
disclosure by terms that permit no discretion on the issue, or in 
accordance with criteria established by that statute for withholding or 
referring to particular types of matters to be withheld. Examples of 
statutes are:
    (1) National Security Agency Act information exemption, Public Law 
86-36, section 6.
    (2) Patent Secrecy, 35 U.S.C. 181-188. Any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (3) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
    (4) Communication intelligence, 18 U.S.C. 798.
    (5) Authority to Withhold from Public Disclosure Certain Technical 
Data, 10 U.S.C. 130, and 32 CFR part 250.
    (6) Confidentiality of Medical Quality Records: Qualified Immunity 
Participants, 10 U.S.C. 1102.
    (7) Physical Protection of Special Nuclear Material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128.
    (8) Protection of Intelligence Sources and Methods, 50 U.S.C. 
403(d)(3).

                           D. Exemption (b)(4)

    Those containing trade secrets or commercial or financial 
information that the OIG receives from a person or organization outside 
the Government with the understanding that the information or record 
will be retained on a privileged or confidential basis in accordance 
with the customary handling of such records. Records within the 
exemption must contain trade secrets, or commercial or financial 
records, the disclosure of which is likely to cause substantial harm to 
the competitive position of the source providing the information; impair 
the Government's ability to obtain necessary information in the future; 
or impair some other legitimate Government interest. Examples include:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. See also 32 CFR part 
286h, ``Release of Acquisition-Related Information''.
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, if offered and received in confidence from a contractor or 
potential contractor.
    (3) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (4) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees within 
the Department of Defense.
    (5) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.
    (6) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, and technical or 
scientific data developed in part with Federal funds and in part at 
private expense, wherein the contractor or subcontractor has retained 
legitimate proprietary interest in such data in accordance with title 
10, U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement 
(DFARS), subpart 27.4 (see section C.(5) of this appendix).
    (7) Computer software meeting the conditions of Sec. 295.3(c), 
which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), 
the disclosure of which would have an adverse impact on the potential 
market value of a copyrighted work.

                           E. Exemption (b)(5)

    Except as provided in subsections (2) through (5), below, internal 
advice, recommendations, and subjective evaluations, as contrasted with 
factual matters, that are reflected in records pertaining to the 
decision-making process of an agency, whether within or among agencies 
(as defined in 5 U.S.C. 552(e)), DoD Components or OIG components. Also 
exempted are records pertaining to attorney-client privilege and the 
attorney work-product privilege.
    (1) Examples include:
    (a) The nonfactual portions of staff papers, to include after-action 
reports and situation reports containing staff evaluations, advice, 
opinions, or suggestions.
    (b) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other similar groups that are formed for the purpose of 
obtaining advice and recommendations.

[[Page 804]]

    (c) Those non-factual portions or evaluations by DoD or OIG 
Components personnel of contractors and their products.
    (d) Information of a speculative, tentative, or evaluative nature of 
such matters as proposed plans to procure, lease or otherwise acquire 
and dispose of materials, real estate, facilities or functions, when 
such information would provide undue or unfair competitive advantage to 
private personal interests or would impede legitimate Government 
functions.
    (e) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interests.
    (f) Records that are exchanged among agency personnel and within and 
among DoD Components or agencies as part of the preparation for 
anticipated administrative proceeding by an agency or litigation before 
any Federal, state, or military court, as well as records that qualify 
for the attorney-client privilege.
    (g) Those portions of official reports of inspection, reports of the 
Inspector General, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of one or more DoD Components, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (h) Computer software meeting the standards of Sec. 295.3(c), which 
is deliberative in nature, the disclosure of which would inhibit or 
chill the decision-making process. In this situation, the use of 
software must be closely examined to ensure its deliberative nature.
    (i) Planning, programming, and budgetary information which is 
involved in the defense planning and resource allocation process.
    (2) If any such intra or interagency record or reasonably segregable 
portion of such record hypothetically would be made available routinely 
through the ``discovery process'' in the course of litigation with the 
agency, i.e., the process by which litigants obtain information from 
each other that is relevant to the issues in a trial or hearing, then it 
should not be withheld from the general public even though discovery has 
not been sought in actual litigation. If, however, the information 
hypothetically would only be made available through the discovery 
process by special order of the court based on the particular needs of a 
litigant, balanced against the interests of the agency in maintaining 
its confidentiality, then the record or document need not be made 
available under this part. Consult with legal counsel to determine 
whether exemption 5 material would be routinely made available through 
the discovery process.
    (3) Intra or interagency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
made available through ``discovery,'' and shall be made available to a 
requester, unless the factual material is otherwise exempt from release, 
inextricably intertwined with the exempt information, so fragmented as 
to be uninformative, or so redundant of information already available to 
the requester as to provide no new substantive information.
    (4) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making process.
    (5) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporated by reference in the record containing 
the decision.

                           F. Exemption (b)(6)

    Information in personnel and medical files, as well as similar 
personal information in other files, that, if disclosed to the requester 
would result in a clearly unwarranted invasion of personal privacy. 
Release of information about an individual contained in a Privacy Act 
System of records would constitute a clearly unwarranted invasion of 
privacy is prohibited, and could subject the releaser to civil and 
criminal penalties.
    (1) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (a) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information.
    (b) Files containing reports, records, and other material pertaining 
to personnel matters in which administrative action, including 
disciplinary action, may be taken.
    (2) Home addresses are normally not releasable without the consent 
of the individuals concerned. In addition, the release of lists of DoD 
military and civilian personnel's names and duty addresses who are 
assigned to units that are sensitive, routinely deployable, or stationed 
in foreign territories can constitute a clearly unwarranted invasion of 
personal privacy.
    (a) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at

[[Page 805]]

some place and time. If personal information is not freely available 
from sources other than the Federal Government, a privacy interest 
exists in its nondisclosure. The fact that the Federal Government 
expended funds to prepare, index and maintain records on personal 
information, and the fact that a requester invokes FOIA to obtain these 
records indicates the information is not freely available.
    (b) Published telephone directories, organizational charts, rosters 
and similar materials for personnel assigned to units that are 
sensitive, routinely deployable, or stationed in foreign territories are 
withholdable under this exemption.
    (3) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person, but it may be used to protect the privacy 
of the deceased person's family.
    (4) Individuals' personnel, medical, or similar file may be withheld 
from them or their designated legal representative only to the extent 
consistent with DoD Directive 5400.11 (32 CFR part 286a).
    (5) A clearly unwarranted invasion of the privacy of the persons 
identified in a personnel, medical or similar record may constitute a 
basis for deleting those reasonably segregable portions of that record, 
even when providing it to the subject of the record. When withholding 
personal information from the subject of the record, legal counsel 
should first be consulted.

                           G. Exemption (b)(7)

    Records or information compiled for law enforcement purposes; i.e., 
civil, criminal, or military law, including the implementation of 
executive orders or regulations issued pursuant to law. This exemption 
may be invoked to prevent disclosure of documents not originally created 
for, but later gathered for law enforcement purposes.
    (1) This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (a) Could reasonably be expected to interfere with enforcement 
proceedings.
    (b) Would deprive a person of the right to a fair trial or to an 
impartial adjudication.
    (c) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record.
    (i) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, the OIG 
shall neither confirm nor deny the existence or nonexistence of the 
record being requested.
    (ii) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (iii) Refusal to confirm or deny should not be used when (1) the 
person whose personal privacy is in jeopardy has provided the requester 
with a waiver of his or her privacy rights; or (2) the person whose 
personal privacy is in jeopardy is deceased, and the OIG is aware of 
that fact.
    (d) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Department of 
Defense, a State, local, or foreign agency or authority, or any private 
institution which furnishes the information on a confidential basis.
    (e) Could disclose information furnished from a confidential source 
and obtained by a criminal law enforcement authority in a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation.
    (f) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law.
    (g) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (2) Examples include:
    (a) Statements of witnesses and other material developed during the 
course of the investigation and all materials prepared in connection 
with related government litigation or adjudicative proceedings.
    (b) The identity of firms or individuals being investigated for 
alleged irregularities involving contracting with Department of Defense 
when no indictment has been obtained nor any civil action filed against 
them by the United States.
    (c) Information obtained in confidence, expressed or implied, in the 
course of a criminal investigation by a criminal law enforcement agency 
or office within a DoD Component, or a lawful national security 
intelligence investigation conducted by an authorized agency or office 
within a DoD Component. National security intelligence investigations 
include background security investigations and those investigations 
conducted for the purpose of obtaining affirmative or 
counterintelligence information.
    (3) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is 
not diminished.
    (4) When the subject of an investigative record is the requester of 
the record, it may

[[Page 806]]

be withheld only as authorized by DoD Directive 5400.11 (32 CFR part 
286a).
    (5) Exclusions. Excluded from the above exemptions are the following 
two situations as applicable to the Department of Defense and the OIG:
    (a) Whenever a request is made which involves access to records or 
information compiled for law enforcement purposes, and the investigation 
or proceeding involves possible violation of criminal law where there is 
reason to believe that the subject of the investigation or proceeding is 
unaware of its pendency, and the disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, the OIG may, during only such times as that circumstance 
continues, treat the records or information as not subject to the FOIA. 
In such situation, the response to the requesters will state that no 
records were found.
    (b) Whenever informant records maintained by a criminal law 
enforcement organization within the OIG under the informant's name or 
personal identifier are requested by a third party using the informant's 
name or personal identifier, the OIG may treat the records as not 
subject to the FOIA, unless the informant's status as an informant has 
been officially confirmed. If it is determined that the records are 
subject to exemption (b)(7), the response to the requester will state 
that no records were found.

                           H. Exemption (b)(8)

    Those contained in or related to examination, operation or condition 
reports prepared by, on behalf of, or for the use of any agency 
responsible for the regulation or supervision of financial institutions.

                           I. Exemption (b)(9)

    Those containing geological and geophysical information and data 
(including maps) concerning wells.



PART 296_NATIONAL RECONNAISSANCE OFFICE FREEDOM OF INFORMATION ACT 
PROGRAM REGULATION--Table of Contents




Sec.
296.1 Purpose.
296.2 Definitions.
296.3 Indexes.
296.4 Procedures for request of records.
296.5 Appeals.
296.6 Reading room.

    Authority: 5 U.S.C. 552, as amended.

    Source: 64 FR 71298, Dec. 21, 1999, unless otherwise noted.



Sec. 296.1  Purpose.

    The purpose of this part is to provide policies and procedures for 
the National Reconnaissance Office (NRO) implementation of the Freedom 
of Information Act (5 U.S.C. 552 as amended) (FOIA), and to promote 
uniformity in the NRO FOIA program.



Sec. 296.2  Definitions.

    The terms used in this part, with the exception of the following, 
are defined in 32 CFR part 286:
    (a) Freedom of Information Act appellate authority. The Chief of 
Staff, NRO.
    (b) Initial denial authority. The Chief, Information Access & 
Release Center NRO.



Sec. 296.3  Indexes.

    (a) The NRO does not originate final orders, opinions, statements of 
policy, interpretations, staff manuals or instructions that affect a 
member of the public of the type covered by the indexing requirement of 
5 U.S.C. 552(a)(2). The Director, NRO, has therefore determined, 
pursuant to pertinent statutory and executive order requirements, that 
it is unnecessary and impracticable to publish an index of the type 
required by 5 U.S.C. 552(a)(2), except the index noted in paragraph (b) 
of this section.
    (b) A general index of FOIA-processed (a)(2) records shall be made 
available to the public, both in hard copy and electronically by 
December 31, 1999.



Sec. 296.4  Procedures for request of records.

    (a) Requests. Requests for access to records of the National 
Reconnaissance Office may be filed by mail or FAX addressed to the 
Chief, Information Access and Release Center, National Reconnaissance 
Office, 14675 Lee Road, Chantilly, VA 20151-1715, FAX Number (703) 808-
5082. Requests need not be made on any special form but must be by 
letter or FAX or other written statement identifying the request as a 
Freedom of Information Act request and setting forth sufficient 
information reasonably describing the requested record. All requests 
should contain a willingness to pay assessable FOIA fees.

[[Page 807]]

    (b) Date of acceptance. The requestor shall be promptly informed by 
letter of the date of acceptance of the request. The search conducted 
pursuant to that request shall be for records in existence as of and 
through the acceptance date.
    (c) Determination and notification. When the requested record has 
been located and identified, the Initial Denial Authority shall 
determine whether the record is one which, consistent with statutory 
requirements, executive orders and appropriate directives, may be 
released or may contain information that is exempt under the provisions 
of 5 U.S.C. 552. Normally, the Initial Denial Authority shall notify the 
requestor of the determination within 20 working days of the receipt of 
the request.
    (d) Multi-track processing. The NRO has 3 queues in which requests 
may be processed when a significant number of pending requests prevents 
a response within 20 working days, all based on the date of receipt, 
first-in first-out, and the amount of work, time, and volume involved in 
processing the requests.
    (See subparagraph C1.5.4.2. of DoD 5400.7-R \1\, Sept 1998). The 
queues are:
---------------------------------------------------------------------------

    \1\ Copies may be obtained via internet at http://web7.whs.osd.mil/
corrres/htm.
---------------------------------------------------------------------------

    (1) Simple. Those requests which are easily handled and processed.
    (2) Complex. Those requests which are complicated by multiple 
searches, co-ordinations, consultations, volume etc.
    (3) Expedited. Expedited processing shall be granted to a requestor 
after the requestor asks for and demonstrates a compelling need for the 
information (paragraph C1.5.4.3. of DoD 5400.7-R)
    (e) Extension of response time. In unusual circumstances when 
additional time is needed to respond, the Initial Denial Authority shall 
notify the requestor in writing of the reasons therefore, and an 
anticipated date, not to exceed 10 additional working days, on which a 
determination is expected to be dispatched. The Initial Denial Authority 
will normally send this notification within 20 working days from receipt 
of the request. Should it be determined that this 10 additional working 
days cannot be met, the requestor shall be notified and offered the 
opportunity to limit or narrow the scope of the request in order to 
facilitate faster processing, or to arrange an alternative time for 
processing the request (paragraph C1.5.2.6. of DoD 5400.7-R)
    (f) Fees.
    (1) General. As a component of the Department of Defense, the 
applicable published Department rules and schedules with respect to the 
schedule of fees chargeable and waiver of fees will also be the policy 
of NRO. See 32 CFR 286.33.
    (2) Advance payments. (i) Where a total fee to be assessed is 
estimated to exceed $250, advance payment of the estimated fee will be 
required before processing of the request, except where assurances of 
full payment are received from a requestor with a history of prompt 
payment. Where a requestor has previously failed to pay a fee within 30 
calendar days of the date of the billing, the requestor will be required 
to pay the full amount owed, plus any applicable interest, or 
demonstrate that he or she has paid the fee, as well as make an advance 
payment of the full amount of any estimated fee before processing of a 
new or pending request continues.
    (ii) For all other requests, advance payment, i.e., a payment made 
before work is commenced, will not be required. Payment for work already 
completed is not an advance payment. Responses will not be held pending 
receipt of fees from requestors with a history of prompt payment. Fees 
should be paid by certified check or postal money order forwarded to the 
Chief, Information Access and Release Center (IARC) and made payable to 
the Treasurer of the United States.



Sec. 296.5  Appeals.

    Any person denied access to records, denied a fee waiver, involved 
in a dispute regarding fee estimates, or who considers a no record 
determination, or any determination to be adverse in nature, may, within 
60 days after notification of such denial, file an appeal to the Freedom 
of Information Act Appellate Authority, National Reconnaissance Office. 
Such an appeal shall be in

[[Page 808]]

writing addressed to the Chief, Information Access and Release Center, 
National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-
1715, should reference the initial denial, and shall contain the basis 
for disagreement with the initial denial. The Freedom of Information Act 
Appellate Authority shall normally make a final determination on an 
appeal within 20 working days after receipt of the appeal.



Sec. 296.6  Reading room.

    (a) The NRO shall provide a reading room equipped with hard copy and 
electronic records as required in the ``Electronic Freedom of 
Information Act Amendments of 1996''. The NRO Reading Room is located at 
14675 Lee Road, Chantilly VA, 20151-1715 and is open weekdays only from 
8:00 am until 4:00 p.m. Requestors must call for an appointment twenty-
four (24) hours in advance so that optimum customer service can be 
provided. (703) 808-5029. Fees will be charged for duplication of hard 
copy records at $.15 per page after the first 100 pages. Softcopy media 
provided to visitors is assessed as follows:
    (1) 5.25[sec] Floppy diskette $0.50
    (2) 3.5[sec] Floppy diskette $0.50
    (3) CD-R Media $3.75
    (4) Video Tape $4.00.
    (b) The NRO FOIA Electronic Reading Room is located on the NRO Home 
Page: www.nro.odci.gov.



PART 298_DEFENSE INVESTIGATIVE SERVICE (DIS) FREEDOM OF INFORMATION ACT 
PROGRAM--Table of Contents




Sec.
298.1 Purpose.
298.2 Organization.
298.3 Records maintained by DIS.
298.4 Procedures for release of DIS records.
298.5 Information requirements.

    Authority: 5 U.S.C. 552.

    Source: 60 FR 20032, Apr. 24, 1995, unless otherwise noted.



Sec. 298.1  Purpose.

    This part states the intent of the agency regarding policy and 
procedures for the public to obtain information from the Defense 
Investigative Service (DIS) under the Freedom of Information Act (FOIA).



Sec. 298.2  Organization.

    (a) The DIS organization includes a Headquarters located in 
Alexandria, Virginia; four Regions and one operational area with 
subordinate operating locations throughout the Continental United States 
(CONUS), Alaska, Hawaii, and Puerto Rico; the Defense Industrial 
Security Clearance Office (DISCO), Columbus, Ohio; the Personnel 
Investigations Center (PIC) and National Computer Center (NCC) in 
Baltimore, Maryland; Office of Industrial Security International Europe 
(OISI-E), located in Brussels, Belgium with a subordinate office in 
Mannheim, Germany; Office of Industrial Security International Far East 
(OISI-FE) located at Camp Zama, Japan; and the Department of Defense 
Security Institute, located in Richmond, Virginia.
    (b) A copy of the DIS Directory showing the addresses of all 
offices, is available to the public upon request and may be obtained by 
following the procedures outlined in Sec. 298.4. The names and duty 
addresses of DIS personnel serving overseas are not released.



Sec. 298.3  Records maintained by DIS.

    It is the policy of DIS to make publicly available all information 
which may be released under the Freedom of information Act (FOIA), 
consistent with its other responsibilities. In implementing this policy, 
DIS follows the procedures set forth in 32 CFR part 286. DIS maintains 
the following records which may be of interest to the public:
    (a) The Defense Clearance and Investigations Index (DCII), which 
contains references to investigative records created and held by DoD 
Components. The records indexed are primarily those prepared by the 
investigative agencies of the DoD, covering criminal, fraud, 
counterintelligence, and personnel security information. This index also 
includes security clearance determinations made by the various 
components of the Department of Defense. Information in the DCII is not 
usually available to the general public, since general release would 
violate the privacy of individuals whose names are indexed therein.
    (b) Records created as required by DoD Directive 5105.42, ``Defense 
Investigative Service (DA&M),'' (32 CFR

[[Page 809]]

part 361) including investigative and industrial security records.
    (c) Publications referenced in ``DIS Directives Listing'' (DIS 00-1-
L). A copy of DIS 00-1-L may be obtained upon request from the DIS 
Office of Information and Public Affairs (V0020), 1340 Braddock Place, 
Alexandria, VA 22314-1651. While this document will be provided for the 
convenience of possible users of the materials, such release does not 
constitute a determination that all or any of the publications listed 
affect the public or have been cleared for public release.



Sec. 298.4  Procedures for release of DIS records.

    (a)(1) All requests will be submitted in writing to: Defense 
Investigative Service, Office of Information and Public Affairs (V0020), 
1340 Braddock Place, Alexandria, Virginia 22314-1651.
    (2) Requests directed to any agency activity (headquarters or field 
elements) will be forwarded to the Office of Information and Public 
Affairs.
    (b) All requests shall contain the following information:
    (1) As complete an identification as possible of the desired 
material including to the extent known, the title description, and date. 
32 CFR part 286 does not authorize ``fishing expeditions.'' In the event 
a request is not reasonably described as defined in 32 CFR part 286, the 
requester will be notified by DIS of the defect.
    (2) The request must contain the first name, middle name or initial, 
surname, date and place of birth, social security number, and, if 
applicable, military service number of the individual concerned, with 
respect to material concerning investigations of an individual.
    (3) A statement as to whether the requester wishes to inspect the 
record or obtain a copy of it.
    (4) A statement that all costs for search (in the case of ``other'' 
and ``commercial'' requesters), duplication (in case of all categories 
of requesters), and review (in the case of ``commercial requesters'') 
will be borne by the requester even if no records, or no releasable 
records, are found, if appropriate. See 32 CFR part 286 for information 
on fees and fee waivers.
    (5) The full address (including ZIP code) of the requester.
    (c) A notarized request by an individual requesting investigative or 
other personnel records may be required to avoid the risk of invasion of 
privacy. Requesters will be notified and furnished appropriate forms if 
this requirement is deemed necessary. In lieu of a notarized statement, 
an unsworn declaration in accordance with 28 U.S.C. 1746 may be 
required.
    (d) When a request is incomplete or fails to include all of the 
information required, the requester will be contacted for additional 
information prior to beginning release procedures.
    (e) DIS shall normally respond to request within 10 working days 
after receipt by the Office of Information and Public Affairs, unless an 
extension is required and the requester is notified in writing. If a 
significant number of requests prevents responding in 10 working days, 
requests, will be processed on a first-come, first-served basis to 
ensure equitable treatment to all requesters.
    (f) When the release of information has been approved, a statement 
of costs computed in accordance with the DoD Fee Schedule (32 CFR part 
286), or a statement waiving the fee, will be included in the 
notification of approval. Records approved for release will generally be 
mailed immediately following the receipt of fees. Fees may be waived or 
reduced in accordance with 32 CFR part 286. Remittances must be in the 
form of a personal check, bank draft, or postal money order. Remittances 
are to be made payable to the Treasurer of the United States. Certified 
documents may be requested for an official government or legal function, 
and will be provided at a rate established by 32 CFR part 286 for each 
authentication.
    (g) When requests are denied in whole or in part in accordance with 
32 CFR part 286, the requester will be advised of the identity of the 
official making the denial, the reason for the denial, the right of 
appeal of the decision, and the identity of the person to whom an appeal 
may be addressed.
    (h) Facilities for the review or reproduction of records following 
approval of the request or appeal are available

[[Page 810]]

at the Defense Investigative Service, Office of Information and Public 
Affairs, 1340 Braddock Place, Alexandria, Virginia 22314-1651. All other 
transactions will be conducted by mail.
    (i) Appeal of denial of DIS records and information. (1) All appeals 
will be submitted in writing and reach the following appellate authority 
no later than 60 days after the date of the initial denial letter: 
Director, Defense Investigative Service (V0000), 1340 Braddock Place, 
Alexandria, Virginia 22314-1651.
    (2) All appeals will contain at least the same identification of the 
records requested as the original request, and a copy of the letter 
denying the request, if available. Requesters will be given appeal 
rights when a search has been conducted and no records are located.
    (3) All appeals will be reviewed by the Director, DIS, or the 
Special Assistant to the Director, DIS. Responses to appeals normally 
shall be made within 20 working days after receipt, unless an extension 
is required and the appellant is notified. When a request is approved on 
appeal, the procedures set forth in paragraph (f) of this section will 
be followed.



Sec. 298.5  Information requirements.

    The DIS Office of Information and Public Affairs is responsible for 
preparation of the annual ``Freedom of Information Act Report.'' This 
report has been assigned control symbol PA (TRA&AN) 1365. No forms or 
publications are required by this part.



PART 299_NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE (NSA/CSS) 
FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents




Sec.
299.1 Purpose.
299.2 Definitions.
299.3 Policy.
299.4 Responsibilities.
299.5 Procedures.
299.6 Fees.
299.7 Exempt records.

    Authority: 5 U.S.C. 552.

    Source: 68 FR 28132, May 23, 2003, unless otherwise noted.



Sec. 299.1  Purpose.

    (a) This part implements 5 U.S.C. 552, as amended, and DoD 5400.7-
R,\1\ assigns responsibility for responding to written requests made 
pursuant to 5 U.S.C. 552; and provides for the review required to 
determine the appropriateness of classification pursuant to DoD 5200.1-
R.\2\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to this section.
---------------------------------------------------------------------------

    (b) This part applies to all NSA/CSS elements, field activities and 
personnel, and governs the release or denial of any information under 
the terms of the Freedom of Information Act (FOIA).



Sec. 299.2  Definitions.

    Terms used in this part, with the exception of the terms in Sec. 
299.4, are defined in DoD 5400.7-R. For ease of reference, however, some 
terms are defined in this section.
    (a) FOIA request. (1) A written request for NSA/CSS records, that 
reasonably describes the records sought, made by any person, including a 
member of the public (U.S. or foreign citizen/entity), an organization 
or a business, but not including a Federal Agency or a fugitive from the 
law that either explicitly or implicitly invokes 5 U.S.C. 552, as 
amended, 5 U.S.C. 552a, as amended, DoD 5400.7-R, or NSA/CSS Freedom of 
Information Act Program, within the National Security Agency/Central 
Security Service. Requesters should also indicate a willingness to pay 
fees associated with the processing of their request or, in the 
alternative, why a waiver of fee may be appropriate.
    (2) An FOIA request may be submitted by U.S. mail or its equivalent, 
by facsimile or electronically through the NSA FOIA Home Page on the 
Internet. The mailing address is FOIA/PA Services (DC321), National 
Security Agency, 9800 Savage Road STE 6248, Ft. George G. Meade, MD 
20755-6248. The Web-based system contains a form to be completed by the 
requester, requiring name and postal mailing address. The URL is http://
www.nsa.gov/docs/efoia/.

[[Page 811]]

    (3) When a request meeting the requirements stated in this section 
is received by the FOIA office and there is no remaining question about 
fees, that request is considered perfected.
    (b) Privacy Act (PA) request. A written request submitted by a U.S. 
citizen or an alien admitted for permanent residence for access to or 
amendment of records on himself/herself which are contained in a PA 
system of records. For purposes of this part, PA request refers to a 
request for copies of records. Regardless of whether the requester cites 
the FOIA, PA or neither law, the request will be processed under both 
this part and NSA/CSS Regulation 10-35, Implementation of the Privacy 
Act of 1974.\3\.
---------------------------------------------------------------------------

    \3\ Copies may be obtained through a FOIA request to the National 
Security Agency, Ft. George G. Meade, MD 20755-6248.
---------------------------------------------------------------------------

    (c) Agency records. (1) The products of data compilation, such as 
all books, papers, maps, and photographs, machine readable materials, 
including those in electronic form or format (including e-mails), or 
other documentary materials, regardless of physical form or 
characteristics, made or received by an agency of the United States 
Government under Federal law in connection with the transaction of 
public business and in NSA/CSS's possession and control at the time the 
FOIA request is made. The term ``records'' does not include:
    (i) Objects or articles such as structures, furniture, vehicles and 
equipment, whatever their historical value or value as evidence;
    (ii) Intangible records such as an individual's memory or oral 
communication; and
    (iii) Personal records of an individual not subject to agency 
creation or retention requirements, created and maintained primarily for 
the convenience of an agency employee, and not distributed to other 
agency employees for their official use.
    (2) A record must exist and be in the possession and control of the 
NSA/CSS at the time of the request to be subject to this part. There is 
no obligation to create or compile a record or obtain a record not in 
the possession of the NSA/CSS to satisfy an FOIA request. The NSA/CSS 
may compile or create a new record when doing so would be less 
burdensome to the Agency than providing existing records and the 
requester does not object.
    (3) Hard copy or electronic records that are subject to FOIA 
requests under 5 U.S.C. 552(a)(3) and are available through an 
established distribution system on the Internet, normally need not be 
processed under the FOIA. The Agency shall provide guidance to the 
requester on how to obtain the material outside of the FOIA process. If 
the requester insists that the request be processed under the FOIA, then 
it shall be so processed.



Sec. 299.3  Policy.

    (a) Pursuant to written requests submitted in accordance with the 
FOIA, the NSA/CSS shall make records available to the public consistent 
with the Act and the need to protect government interests pursuant to 
subsection (b) of the Act. Oral requests for information shall not be 
accepted. Before the Agency responds to a request, the request must 
comply with the provisions of this part. In order that members of the 
public have timely access to unclassified information regarding NSA 
activities, requests for information that would not be withheld if 
requested under the FOIA or the Privacy Act (PA) may be honored through 
appropriate means without requiring the requester to invoke the FOIA or 
the PA. Although a record may require minimal redaction before its 
release, this fact alone shall not require the Agency to direct the 
requester to submit a formal FOIA or PA request for the record.
    (b) Requests for electronic records shall be processed, and the 
records retrieved whenever retrieval can be achieved through reasonable 
efforts (in terms of both time and manpower) and these efforts would not 
significantly interfere with the operation of an automated information 
system. Reasonable efforts shall be undertaken to maintain records in 
forms of formats that render electronic records readily reproducible.
    (c) The NSA/CSS does not originate final orders, opinions, 
statements of policy, interpretations, staff manuals, or instructions 
that affect members of

[[Page 812]]

the public of the type generally covered by the indexing requirement of 
5 U.S.C. 552. Therefore, it has been determined, pursuant to the 
pertinent statutory and executive order requirements, that it is 
unnecessary and impracticable to publish an index of the type required 
by 5 U.S.C. 552. However, should such material be identified, it will be 
indexed and placed in the library at the National Cryptologic Museum 
(NCM), which serves as the NSA/CSS FOIA reading room, and made available 
through the Internet. Copies of records which have been released under 
the FOIA and which NSA/CSS has determined are likely to become the 
subject of subsequent requests will be placed in the library of the NCM. 
In addition, these records are made available to the public through the 
Internet. An index of this material is available in hard copy in the 
museum library and on the Internet.



Sec. 299.4  Responsibilities.

    (a) The Director's Chief of Staff (DC) is responsible for overseeing 
the administration of the FOIA, which includes responding to FOIA 
requests and for collecting fees from FOIA requesters.
    (b) The Director of Policy (DC3), or the Deputy Director of Policy 
(D/DC3), if so designated, is the initial denial authority (IDA) and is 
responsible for:
    (1) Receiving and staffing all initial, written requests for the 
release of information;
    (2) Conducting the necessary reviews to determine the releasability 
of information pursuant to DoD 5200.1-R;
    (3) Providing the requester with releasable material;
    (4) Notifying the requester of any adverse determination, including 
informing the requester of his/her right to appeal an adverse 
determination to the appeal authority (see Sec. 299.5(n));
    (5) Assuring the timeliness of responses;
    (6) Negotiating with the requester regarding satisfying his request 
(e.g., time extensions, modifications to the request);
    (7) Authorizing extensions of time within Agency components (e.g., 
time needed to locate and/or review material);
    (8) Assisting the Office of General Counsel (OGC) in judicial 
actions filed under 5 U.S.C. 552;
    (9) Maintaining the FOIA reading room and the Internet home page; 
and
    (10) Compiling the annual FOIA report.
    (c) The Chief, Accounting and Financial Services (DF22) is 
responsible for:
    (1) Sending initial and follow-up bills to FOIA requesters as 
instructed by the FOIA office, with a copy of all bills going to the 
FOIA office. In cases where an estimate of fees is provided to the 
requester prior to the processing of his/her request, no bill shall be 
sent. Although the FOIA office asks FOIA requesters to send payment to 
the FOIA office, for subsequent forwarding to Accounting and Financial 
Services, payment may be received directly in Accounting and Financial 
Services. Such payment may be identified by the payee as payment for a 
Freedom of Information Act request, by the letters ``FOIA,'' or as 
payment for XXXXX. (FOIA requesters are provided a case number to refer 
to in correspondence with NSA);
    (2) Receiving and handling all checks or money orders remitted in 
payment for FOIA requests, crediting them to the proper account and 
notifying the FOIA office promptly of all payments received;
    (3) Notifying the FOIA office promptly of any payments received 
directly from requesters even if no bill was initiated by Accounting and 
Financial Services; and
    (4) Issuing a prompt reimbursement of overpaid fees to the requester 
upon being notified of such overpayment by the FOIA office.
    (d) The Deputy Director, NSA/CSS, is the FOIA Appeal Authority 
required by 5 U.S.C. 552 for considering appeals of adverse 
determinations by the Director of Policy. In the absence of the Deputy 
Director, the Director's Chief of Staff serves as the Appeal Authority.
    (e) The General Counsel (GC) or his designee is responsible for:
    (1) Reviewing responses to FOIA requests to determine the legal 
sufficiency of actions taken by the Director of Policy, as required on a 
case-by-case basis;

[[Page 813]]

    (2) Reviewing the appeals of adverse determinations made by the 
Director of Policy. The GC will prepare an appropriate reply to such 
appeals and submit that reply to the NSA/CSS FOIA Appeal Authority for 
final decision; and
    (3) Representing the Agency in all judicial actions relating to 5 
U.S.C. 552 and providing support to the Department of Justice.
    (f) The Chief of Installation and Logistics (I&L) shall establish 
procedures to ensure that:
    (1) All inquiries for information pursuant to 5 U.S.C. 552 are 
delivered promptly to the Director of Policy; and
    (2) Any appeal of an adverse determination is delivered promptly and 
directly to the NSA/CSS Appeal Authority staff.
    (g) The Directorates, Associate Directorates, and Field Elements 
shall:
    (1) Establish procedures to ensure that any inquiries for 
information pursuant to 5 U.S.C. 552 are referred immediately and 
directly to the Director of Policy. Field Elements should forward, 
electronically, any requests received to the DIRNSA/CHCSS, ATTN: DC3; 
and
    (2) Designate a senior official and an alternate to act as a focal 
point to assist the Director of Policy in determining estimated and 
actual cost data, in conducting searches reasonably calculated to 
retrieve responsive records and assessing whether information can be 
released or should be withheld.
    (h) Military and civilian personnel assigned or attached to or 
employed by the NSA/CSS who receive a Freedom of Information Act request 
shall deliver it immediately to the Director of Policy. Individuals who 
are contacted by personnel at other government agencies and asked to 
assist in reviewing material for release under the FOIA must direct the 
other agency employee to the NSA/CSS FOIA office promptly.



Sec. 299.5  Procedures.

    (a) Requests for copies of records of the NSA/CSS shall be delivered 
to the Director of Policy immediately upon receipt once the request is 
identified as a Freedom of Information Act or Privacy Act requestor 
appears to be intended as such a request.
    (b) The Director of Policy, or Deputy Director of Policy, if so 
designated, shall endeavor to respond to a direct request to NSA/CSS 
within 20 working days of receipt. If the request fails to meet the 
minimum requirements of a perfected FOIA request, the FOIA office shall 
advise the requester of how to perfect the request. The 20 working day 
time limit applies upon receipt of the perfected request. In the event 
the Director of Policy cannot respond within 20 working days due to 
unusual circumstances, the chief of the FOIA office shall advise the 
requester of the reason for the delay and negotiate a completion date 
with the requester.
    (c) Direct requests to NSA/CSS shall be processed in the order in 
which they are received. Requests referred to NSA/CSS by other 
government agencies shall be placed in the processing queue according to 
the date the requester's letter was received by the referring agency if 
that date is known, in accordance with Department of Justice Guidelines. 
If it is not known when the referring agency received the request, it 
shall be placed in the queue according to the date of the requester's 
letter.
    (d) The FOIA office shall maintain six queues (``super easy,'' 
``sensitive/personal easy,'' ``non-personal easy,'' ``sensitive/personal 
voluminous,'' ``non-personal complex,'' and ``expedite'') for the 
processing of records in chronological order. The processing queues are 
defined as follows:
    (1) Super easy queue. The super easy queue is for requests for which 
no responsive records are located or for material that requires minimal 
specialized review.
    (2) Sensitive/personal easy queue. The sensitive/personal easy queue 
contains FOIA and PA records that contain sensitive personal 
information, typically relating to the requester or requester's 
relatives, and that do not require a lengthy review. These requests are 
processed by DC321 staff members who specialize in handling sensitive 
personal information.
    (3) Non-personal easy queue. The non-personal easy queue contains 
all other types of NSA records not relating to

[[Page 814]]

the requester, that often contain classified information that may 
require coordinated review among NSA components, and that do not require 
a lengthy review. These requests are processed by DC321 staff members 
who specialize in complex classification Issues.
    (4) Sensitive/personal voluminous queue. The sensitive/personal 
voluminous queue contains FOIA and PA records that contain sensitive 
personal information, typically relating to the request or the 
requester's relatives, and that require a lengthy review because of the 
high volume of responsive records. These records may also contain 
classified information that may require coordinated review in several 
NSA components. These requests are processed by DC321 staff members who 
specialize in handling sensitive personal information.
    (5) Non-personal complex queue. The non-personal complex queue 
contains FOIA records not relating to the requester that require a 
lengthy review because of the high volume and/or complexity of 
responsive records. These records contain classified, often technical 
information that requires coordinated review among many specialized NSA 
components, as well as consultation with other government agencies. 
These requests are processed by DC321 staff members who specialize in 
complex classification issues.
    (6) Expedite queue. Cases meeting the criteria for expeditious 
processing as defined in paragraph (f) of this section shall be 
processed in turn within that queue by the appropriate processing team.
    (e) Requesters shall be informed immediately if no responsive 
records are located. Following a search for and retrieval of responsive 
material, the initial processing team shall determine which queue in 
which to place the material, based on the criteria in paragraph (d)(1) 
through (6) of this section and shall so advise the requester. If the 
material requires minimal specialized review (super easy), the initial 
processing team shall review, redact if required, and provide the non-
exempt responsive material to the requester immediately. All other 
material shall be processed by the appropriate specialized processing 
team on a first-in, first-out basis within its queue. These procedures 
are followed so that a requester shall not be required to wait a long 
period of time to learn that the Agency has no records responsive to his 
request or to obtain records that require minimal review. For 
statistical reporting purposes for the Annual Report, super easy, 
sensitive/personal easy, and non-personal easy cases shall be counted as 
``Easy'' cases, and sensitive/personal voluminous and non-personal 
complex cases shall be counted as ``Hard'' cases.
    (f) Expedited processing shall be granted to a requester if he/she 
requests such treatment and demonstrates a compelling need for the 
information. A demonstration of compelling need by a requester shall be 
made by a statement certified by the requester to be true and correct to 
the best of his/her knowledge. A compelling need is defined as follows:
    (1) The failure to obtain the records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual.
    (2) The information is urgently needed by an individual primarily 
engaged in disseminating information to inform the public about actual 
or alleged Federal Government activity. Urgently needed means that the 
information has a particular value that will be lost if not disseminated 
quickly.
    (3) A request may also be expedited, upon receipt of a statement 
certified by the requester to be true and correct to the best of his/her 
knowledge, for the following reasons:
    (i) There would be an imminent loss of substantial due process 
rights.
    (ii) There is a humanitarian need for the material. Humanitarian 
need means that disclosing the information will promote the welfare and 
interests of mankind.
    (4) Requests which meet the criteria for expedited treatment as 
defined in paragraph (f)(3) of this section will be placed in the 
expedite queue behind requests which are expedited because of a 
compelling need (see paragraphs (f)(1) and (2) of this section).
    (5) A decision on whether to grant expedited treatment shall be made 
within

[[Page 815]]

10 calendar days of receipt. The requester shall be notified whether 
his/her request meets the criteria for expedited processing within that 
time frame. If a request for expedited processing has been granted, a 
substantive response shall be provided within 20 working days of the 
date of the decision to expedite. If a substantive response cannot be 
provided within 20 working days, a response shall be provided as soon as 
practicable and the chief of the FOIA office shall negotiate a 
completion date with the requester, taking into account the number of 
cases preceding it in the expedite queue and the complexity of the 
responsive material.
    (g) If the Director of Policy, in consultation with the GC, 
determines that the fact of the existence or non-existence of requested 
material is a matter that is exempt from disclosure, the requester shall 
be so advised.
    (h) If the FOIA office determines that NSA/CSS may have information 
of the type requested, the office shall contact each Directorate or 
Associate Directorate reasonably expected to hold responsive records.
    (i) The FOIA office shall assign the requester to the appropriate 
fee category under 5 U.S.C. 552, as amended, and DoD 5400.7-R, and, if a 
requester seeks a waiver of fees, the FOIA office shall, after 
determining the applicable fee category, determine whether to waive fees 
pursuant to DoD 5400.7-R. (See also Sec. 299.6.) If fees are to be 
assessed in accordance with the provisions of 5 U.S.C. 552 and DoD 
5400.7-R, the Directorate or Associate Directorate shall prepare an 
estimate of the cost required to locate, retrieve and, in the case of 
commercial requesters, review the records. Cost estimates shall include 
only direct search, duplication costs and review time (for commercial 
requesters) as defined in DoD 5400.7-R.
    (1) If the cost estimate does not exceed $25.00, the component shall 
search for and forward to the FOIA office the documents responsive to 
the request. Fees $25.00 and under shall be waived.
    (2) If the costs are estimated to exceed $25.00, the component shall 
provide an estimate to the FOIA office without conducting the search. 
The chief of the FOIA office shall advise the requester of the costs to 
determine a willingness to pay the fees. A requester's willingness to 
pay fees shall be satisfactory when the estimated fee does not exceed 
$250.00 and the requester has a history of prompt payment. A history of 
prompt payment means payment within 30 calendar days of the date of 
billing. If fees are expected to exceed $250.00, the requester shall be 
required to submit payment before processing is continued if the 
requester does not have a history of prompt payment. All payments shall 
be made by certified check or money order made payable to the Treasurer 
of the United States.
    (3) When a requester has previously failed to pay a fee charged 
within a timely fashion (i.e., within 30 calendar days from the date of 
billing) payment is required before a search is initiated or before 
review is begun. When a requester has no payment history, an advance 
payment may be required of the requester after the case has been 
completed, but prior to providing the final response.
    (4) If a requester has failed to pay fees after three bills have 
been sent, additional requests from that requester and/or the 
organization or company he/she represents will not be honored until all 
costs and interest are paid.
    (j) Upon receipt of a statement of willingness to pay assessable 
fees or the payment from the requester, the FOIA office shall notify the 
NSA/CSS component to search for the appropriate documents.
    (1) The component conducting the search shall advise the FOIA office 
of the types of files searched (e.g., electronic records/e-mail, video/
audio tapes, paper), the means by which the search was conducted (e.g., 
subject or chronological files, files retrievable by name or personal 
identifier) and any key words used in an electronic search.
    (2) If the search does not locate the requested records, the 
Director of Policy shall so advise the requester and offer appeal 
rights.
    (3) If the search locates the requested records, the holding 
organization shall furnish copies of these records immediately to the 
FOIA office. The Director of Policy shall make a determination as to the 
releasability of the

[[Page 816]]

records in consultation with the GC, the Legislative Affairs Office (if 
any information relates to members of Congress or their staffs) and 
other Agency components, as appropriate. This determination shall also 
state, with particularity, that a search reasonably calculated to locate 
responsive records was conducted and that all reasonably segregable, 
non-exempt information was released. The located records will be handled 
as follows:
    (i) All exempt records or portions thereof shall be withheld and the 
requester so advised along with the statutory basis for the denial; the 
volume of material being denied, unless advising of the volume would 
harm an interest protected by exemption (see 5 U.S.C. 552); and the 
procedure for filing an appeal of the denial.
    (ii) All segregable, non-exempt records or portions thereof shall be 
forwarded promptly to the requester.
    (k) Records or portions thereof originated by other agencies or 
information of primary interest to other agencies found in NSA/CSS 
records shall be handled as follows:
    (1) The originating agency's FOIA Authority shall be provided with a 
copy of the request and the stated records.
    (2) The requester shall be advised of the referral, except when 
notification would reveal exempt information.
    (l) Records of portions thereof originated by a commercial or 
business submitter and containing information that is arguably 
confidential commercial or financial information as defined in Executive 
Order 12600 (52 FR 23781, 3 CFR, 1987 Comp., p. 235) shall be handled as 
follows:
    (1) The commercial or business submitter shall be provided with a 
copy of the records as NSA/CSS proposes to release them, and the 
submitter shall be given an opportunity to inform the FOIA office about 
its objections to disclosure in writing.
    (2) The Director of Policy or his/her designee shall review the 
submitter's objections to disclosure and, if DC3 decides to release 
records or portions thereof to the requester, provide the submitter with 
an opportunity to enjoin the release of such information.
    (m) Records may be located responsive to an FOIA request which 
contain portions not responsive to the subject of the request. The non-
responsive portions shall be processed as follows:
    (1) If the information is easily identified as releasable, the non-
responsive portions shall be provided to the requester.
    (2) If additional review or coordination with other NSA/CSS elements 
or other government agencies or entities is required to determine the 
releasability of the information, and the processing of the material 
would be facilitated by excluding those portions from review, the 
requester should be consulted regarding the need to process those 
portions. If the requester states that he is interested in the document 
in its entirety, including those portions not responsive to the subject 
of his request, the entire document shall be considered responsive and 
reviewed accordingly.
    (3) If the conditions as stated in paragraph (m)(2) of this section 
pertain, but it is not a simple matter to contact and/or reach an 
agreement with the requester, the non-responsive portions shall be 
marked to differentiate the removal of non-responsive material from the 
removal of exempt portions. The requester shall be advised that portions 
were removed as non-responsive. In addition, he/she shall be given an 
indication of the manner in which those portions would be treated if 
responsive (e.g., the information would be protected by exemptions, 
would require extensive review/consultation). Such a response is not 
considered an adverse determination. If the requester informs the FOIA 
office of his interest in receiving the non-responsive portions, the 
request shall be placed in the same location within the processing queue 
as the original request and those portions of the documents shall be 
processed.
    (4) If the requester states in his initial request that he/she wants 
all non-responsive portions contained within documents containing 
responsive information, then the documents shall be processed in their 
entirety.
    (n) Any person advised of an adverse determination shall be notified 
of the right to submit an appeal postmarked

[[Page 817]]

within 60 days of the date of the response letter and that the appeal 
must be addressed to the NSA/CSS FOIA Appeal Authority, National 
Security Agency, Ft. George G. Meade, MD 20755-6248. The following 
actions are considered adverse determinations:
    (1) Denial of records or portions of records;
    (2) Inability of NSA/CSS to locate records;
    (3) Denial of a request for the waiver or reduction of fees;
    (4) Placement of requester in a specific fee category;
    (5) Amount of estimate of processing costs;
    (6) Determination that the subject of a request is not within the 
purview of NSA/CSS and that a search for records shall not be conducted;
    (7) Denial of a requester for expeditious treatment; and
    (8) Non-agreement regarding completion date of request.
    (o) The GC or his designee shall process appeals and make a 
recommendation to the Appeal Authority.
    (1) Upon receipt of an appeal regarding the denial of information or 
the inability of the Agency to locate records, the GC or his designee 
shall provide a legal review of the denial and/or the adequacy of the 
search for responsive material, and make other recommendations as 
appropriate.
    (2) If the Appeal Authority determines that additional information 
may be released, the information shall be made available to the 
requester within 20 working days from receipt of the appeal. The 
conditions for responding to an appeal for which expedited treatment is 
sought by the requester are the same as those for expedited treatment on 
the initial processing of a request. (See paragraph (f) of this 
section.)
    (3) If the Appeal Authority determines that the denial was proper, 
the requester must be advised within 20 days after receipt of the appeal 
that the appeal is denied. The requester likewise shall be advised of 
the basis for the denial and the provisions for judicial review of the 
Agency's appellate determination.
    (4) If a new search for records is conducted and produces additional 
material, the additional records shall be forwarded to the Director of 
Policy, as the IDA, for review. Following his/her review, the Director 
of Policy shall return the material to the GC with his/her 
recommendation for release or withholding. The GC shall provide a legal 
review of the material, and the Appeal Authority shall make the release 
determination. Upon denial or release of additional information, the 
Appeal Authority shall advise the requester that more material was 
located and that the IDA and the Appeal Authority each conducted an 
independent review of the documents. In the case of denial, the 
requester shall be advised of the basis of the denial and the right to 
seek judicial review of the Agency's action.
    (5) When a requester appeals the absence of a response to a request 
within the statutory time limits, the GC shall process the absence of a 
response as it would denial of access to records. The Appeal Authority 
shall advise the requester of the right to seek judicial review.
    (6) Appeals shall be processed using the same multi-track system as 
initial requests. If an appeal cannot be responded to within 20 working 
days, the requirement to obtain an extension from the requester is the 
same as with initial requests. The time to respond to an appeal, 
however, may be extended by the number of working days (not to exceed 
10) that were not used as additional time for responding to the initial 
request. That is, if the initial request is processed within 20 working 
days so that the extra 10 days of processing which an agency can 
negotiate with the requester are not used, the response to the appeal 
may be delayed for that 10 days (or any unused portion of the 10 days).



Sec. 299.6  Fees.

    (a) Upon receipt of a request, DC3 shall evaluate the request to 
determine the fee category or status of the requester, as well as the 
appropriateness of a waiver or reduction of fees if requested. There are 
no fees associated with a Privacy Act request, except as stated in NSA/
CSS Regulation 10-35, Implementation of the Privacy Act of 1974. If fees 
are assessable, a search

[[Page 818]]

cost estimate shall be sent to the Directorate(s) and Associate 
Directorate(s) expected to maintain responsive records. If DC3 assigns a 
fee category to a requester which differs from that claimed by the 
requester or determines that a waiver or reduction of fees is not 
appropriate, DC3 shall notify the requester of this discrepancy and of 
the estimated cost of processing the request. The requester shall be 
given 60 days to provide additional substantiation for the fee status 
claimed or for a fee waiver or reduction. The requester shall be advised 
that his/her request shall not be processed until the discrepancy over 
the fee category, fee waiver or reduction, or both are resolved. He/she 
shall also be advised of his/her right to appeal/DC3's determination. A 
fee waiver or reduction shall be granted or denied in accordance with 
DoD 5400.7-R and based on information provided by the requester. If the 
requester does not respond to DC3's initial notification of the 
discrepancy in fee assessment within the 60 days, DC3's determination 
about that requester's fee status shall be final.
    (b) Fees shall reflect only direct search, review (in the case of 
commercial requesters) and duplication costs, recovery of which are 
permitted by 5 U.S.C. 552. Fees shall not be used to discourage 
requesters.
    (c) No minimum fee may be charged. Fees under $25.00 shall be 
waived.
    (d) Fees shall be based on estimates provided by appropriate 
organizational focal points. Upon completion of the processing of the 
request and computation of all assessable fees, the request shall be 
handled as follows:
    (1) If the earlier cost estimate was under $250.00 and the requester 
has not yet paid and has no payment history, the requester shall be 
notified of the actual cost and shall be sent a bill under separate 
cover. Upon receipt of payment, processing results and non-exempt 
information shall be provided to the requester.
    (2) In cases where the requester paid prior to processing, if the 
actual costs exceed the estimated costs, the requester shall be notified 
of the remaining fees due. Processing results and non-exempt information 
shall be provided to the requester upon payment of the amount in excess 
or, if less than $250.00, receipt of the requester's agreement to pay. 
If the requester refuses to pay the amount in excess, processing of the 
request will be terminated with notice to the requester.
    (3) In cases where the requester paid prior to processing, if the 
actual costs are less than estimated fees which have been collected from 
the requester, processing results and the non-exempt information shall 
be provided to the requester, and the FOIA office shall advise 
Accounting and Financial Services of the need to refund funds to the 
requester.
    (e) Fees for manual searches, review time and personnel costs 
associated with computer searches shall be computed according to the 
following schedule:

------------------------------------------------------------------------
                                                                  Hourly
                 Type                            Grade             rate
------------------------------------------------------------------------
(1) Clerical.........................  E9/GS8 and below........      $20
(2) Professional.....................  O1-O6/GS9-GS15..........       44
(3) Executive........................  O7/SCE/SLE/SLP..........       75
(4) Contractor.......................  ........................       44
------------------------------------------------------------------------

    (f) Fees for machine time involved in computer searches shall be 
based on the direct cost of retrieving information from the computer, 
including associated input/output costs.
    (g) Search costs for audiovisual documentary material shall be 
computed as for any other record. Duplication costs shall be the actual, 
direct cost of reproducing the material, including the wage of the 
person doing the work. Audiovisual materials provided to a requester 
need not be in reproducible format or quality.
    (h) Duplication fees shall be assessed according to the following 
schedule:

------------------------------------------------------------------------
                                                                Cost per
                             Type                                 page
------------------------------------------------------------------------
(1) Office Copy..............................................       $.15
(2) Microfiche...............................................        .25
(3) Printed Material.........................................        .02
------------------------------------------------------------------------



Sec. 299.7  Exempt records.

    (a) Records meeting the exemption criteria of 5 U.S.C. 552 need not 
be published in the Federal Register, made available in a reading room, 
or provided in response to requests made under 5 U.S.C. 552.

[[Page 819]]

    (b) The first seven of the following nine FOIA exemptions may be 
used by the NSA/CSS to withhold information in whole or in part from 
public disclosure when there is a sound legal basis for protecting the 
information. Discretionary releases shall be made following careful 
Agency consideration of the interests involved.
    (1) Records specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy and which are in fact properly classified pursuant to 
such Executive Order.
    (2) Records relating solely to the internal personnel rules and 
practices of an agency.
    (3) Records which concern matters that a statute specifically 
exempts from disclosure, so long as the statutory exemptions permit no 
discretion on what matters are exempt; or matters which meet criteria 
established for withholding by the statute, or which are particularly 
referred to by the statute as being matters to be withheld. Examples of 
such statutes are:
    (i) The National Security Agency Act of 1959 (Public Law 86-36 
Section 6);
    (ii) 18 U.S.C. 798;
    (iii) 50 U.S.C. 403-3(c)(6);
    (iv) 10 U.S.C. 130; and
    (v) 10 U.S.C. 2305(g).
    (4) Records containing trade secrets and commercial or financial 
information obtained from a person and privileged or confidential.
    (5) Interagency or intra-agency memoranda or letters that would not 
be available by law to a party other than an agency in litigation with 
the agency.
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (7) Investigatory records compiled for law enforcement purposes, but 
only to the extent that the production of such records:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of the right to a fair trial or to an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within NSA/CSS, state, local, or 
foreign agency or authority, or any private institution which furnishes 
the information on a confidential basis, or could disclose information 
furnished from a confidential source and obtained by a criminal law 
enforcement authority in a criminal investigation or by an agency 
conducting a lawful national security intelligence investigation;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; and
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Records contained in or related to examination, operating, or 
condition reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions.
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (c) Information which has not been given a security classification 
pursuant to the criteria of an Executive Order, but which may be 
withheld from the public for one or more of FOIA exemptions 2 through 9 
cited in paragraphs (b)(2) through (b)(9) of this section, shall be 
considered ``UNCLASSIFIED//FOR OFFICIAL USE ONLY'' (U//FOUO). No other 
material shall be considered or marked U//FOUO. The marking of 
appropriate records with the U//FOUO designation at the time of their 
creation provides notice of U//FOUO content and shall facilitate review 
when a record is requested under the FOIA. However, records requested 
under the FOIA which do not bear the

[[Page 820]]

U//FOUO designation shall not be assumed to be releaseable without 
examination for the presence of information that requires continued 
protection and qualifies as exempt from public release.

[[Page 821]]



                      SUBCHAPTER O_PRIVACY PROGRAM





PART 310_DoD PRIVACY PROGRAM--Table of Contents




                          Subpart A_DoD Policy

Sec.
310.1 Reissuance
310.2 Purpose.
310.3 Applicability and scope.
310.4 Definitions.
310.5 Policy.
310.6 Responsibilities.
310.7 Information requirements.
310.8 Rules of conduct.
310.9 Privacy boards and office composition and responsibilities.

                      Subpart B_Systems of Records

310.10 General.
310.11 Standards of accuracy.
310.12 Government contractors.
310.13 Safeguarding personal information.

                Subpart C_Collecting Personal Information

310.20 General considerations.
310.21 Forms.

                     Subpart D_Access by Individuals

310.30 Individual access to personal information.
310.31 Denial of individual access.
310.32 Amendment of records.
310.33 Reproduction fees.

Subpart E_Disclosure of Personal Information to Other Agencies and Third 
                                 Parties

310.40 Conditions of disclosure.
310.41 Nonconsensual disclosures.
310.42 Disclosures to commercial enterprises.
310.43 Disclosures to the public from health care records.
310.44 Disclosure accounting.

                          Subpart F_Exemptions

310.50 Use and establishment of exemptions.
310.51 General exemptions.
310.52 Specific exemptions.

                   Subpart G_Publication Requirements

310.60 Federal Register publication.
310.61 Exemption rules.
310.62 System notices.
310.63 New and altered record systems.
310.64 Amendment and deletion of systems notices.

                     Subpart H_Training Requirements

310.70 Statutory training requirements.
310.71 OMB training guidelines.
310.72 DoD training programs.
310.73 Training methodology and procedures.
310.74 Funding for training.

                            Subpart I_Reports

310.80 Requirements for reports.
310.81 Suspense for submission of reports.
310.82 Reports control symbol.

                          Subpart J_Inspections

310.90 Privacy Act inspections.
310.91 Inspection reporting.

                Subpart K_Privacy Act Enforcement Actions

310.100 Administrative remedies.
310.101 Civil actions.
310.102 Civil remedies.
310.103 Criminal penalties.
310.104 Litigation status sheet.

                  Subpart L_Matching Program Procedures

310.110 OMB matching guidelines.
310.111 Requesting matching programs.
310.112 Time limits for submitting matching reports.
310.113 Matching programs among DoD components.
310.114 Annual review of systems of records.

Appendix A to Part 310--Special Considerations for Safeguarding Personal 
          Information in ADP Systems
Appendix B to Part 310--Special Considerations for Safeguarding Personal 
          Information During Word Processing
Appendix C to Part 310--DoD Blanket Routine Uses
Appendix D to Part 310--Provisions of the Privacy Act From Which a 
          General or Specific Exemption May be Claimed
Appendix E to Part 310--Sample of New or Altered System of Records 
          Notice in ``Federal Register'' Format
Appendix F to Part 310--Format for New or Altered System Report
Appendix G to Part 310--Sample Deletions and Amendments to Systems 
          Notices in ``Federal Register'' Format
Appendix H to Part 310--Litigation Status Sheet
Appendix I to Part 310--Office of Management and Budget (OMB) Matching 
          Guidelines


[[Page 822]]


    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 51 FR 2364, Jan. 16, 1986, unless otherwise noted. 
Redesignated at 56 FR 55631, Oct. 29, 1991.



                          Subpart A_DoD Policy

    Source: 65 FR 7732, Feb. 16, 2000, unless otherwise noted.



Sec. 310.1  Reissuance.

    This part is reissued to consolidate into a single document (32 CFR 
part 310) Department of Defense (DoD) policies and procedures for 
implementing the Privacy Act of 1974, as amended (5 U.S.C. 522a) by 
authorizing the development, publication and maintenance of the DoD 
Privacy Program set forth by DoD Directive 5400.11,\1\ December 13, 
1999, and 5400.11-R,\2\ August 31, 1983, both entitled: ``DoD Privacy 
Program.''
---------------------------------------------------------------------------

    \1\ Copies may be obtained: http://web7.whs.osd.mil/corres.htm.
    \2\ See footnote 1 to Sec. 310.1.
---------------------------------------------------------------------------



Sec. 310.2  Purpose.

    This part:
    (a) Updates policies and responsibilities of the DoD Privacy Program 
under 5 U.S.C. 552a, and under OMB Circular A-130.\3\
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    \3\ Copies may be obtained: EOP Publications, NEOB, 725 17th Street, 
NW Washington, DC 20503.
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    (b) Authorizes the Defense Privacy Board, the Defense Privacy Board 
Legal Committee and the Defense Data Integrity Board.
    (c) Continues to authorize the publication of DoD 5400.11-R.
    (d) Continues to delegate authorities and responsibilities for the 
effective administration of the DoD Privacy Program.



Sec. 310.3  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense (OSD), the 
Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Combatant Commands, the Inspector General of the Department of Defense 
(IG, DoD), the Uniformed Services University of the Health Sciences, the 
Defense agencies, and the DoD Field Activities (hereafter referred to 
collectively as ``the DoD Components''). This part is mandatory for use 
by all DoD Components. Heads of DoD Components may issue supplementary 
instructions only when necessary to provide for unique requirements 
within their Components. Such instructions will not conflict with the 
provisions of this part.
    (b) Shall be made applicable to DoD contractors who are operating a 
system of records on behalf of a DoD Component, to include any of the 
activities, such as collecting and disseminating records, associated 
with maintaining a system of records.
    (c) This part does not apply to:
    (1) Requests for information from systems of records controlled by 
the Office of Personnel Management (OPM), although maintained by a DoD 
Component. These are processed in accordance with OPM's `Privacy 
Procedures for Personnel Records' (5 CFR part 297).
    (2) Requests for personal information from the General Accounting 
Office (GAO). These are processed in accordance with DoD Directive 
7650.1,\4\ ``General Accounting Office Access to Records,'' September 
11, 1997.
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    \4\ See footnote 1 to Sec. 310.1.
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    (3) Requests for personal information from Congress. These are 
processed in accordance with DoD Directive 5400.4,\5\ ``Provisions of 
Information to Congress,'' January 30, 1978, except for those specific 
provisions in Subpart E--Disclosure of Personal Information to Other 
Agencies and Third Parties.
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    \5\ See footnote 1 to Sec. 310.1.
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    (4) Requests for information made under the Freedom of Information 
Act (5 U.S.C. 552). These are processed in accordance with ``DoD Freedom 
of Information Act Program Regulation'' (32 CFR part 286).



Sec. 310.4  Definitions.

    Access. The review of a record or a copy of a record or parts 
thereof in a system of records by any individual.
    Agency. For the purposes of disclosing records subject to the 
Privacy Act among DoD Components, the Department of Defense is 
considered a single agency. For all other purposes to include 
applications for access and

[[Page 823]]

amendment, denial of access or amendment, appeals from denials, and 
record keeping as regards release to non-DoD agencies; each DoD 
Component is considered an agency within the meaning of the Privacy Act.
    Confidential source. A person or organization who has furnished 
information to the federal government under an express promise that the 
person's or the organization's identity will be held in confidence or 
under an implied promise of such confidentiality if this implied promise 
was made before September 27, 1975.
    Disclosure. The transfer of any personal information from a system 
of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review) to any person, private entity, 
or government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.
    Individual. A living person who is a citizen of the United States or 
an alien lawfully admitted for permanent residence. The parent of a 
minor or the legal guardian of any individual also may act on behalf of 
an individual. Corporations, partnerships, sole proprietorships, 
professional groups, businesses, whether incorporated or unincorporated, 
and other commercial entities are not ``individuals.''
    Law enforcement activity. Any activity engaged in the enforcement of 
criminal laws, including efforts to prevent, control, or reduce crime or 
to apprehend criminals, and the activities of prosecutors, courts, 
correctional, probation, pardon, or parole authorities.
    Maintain. Includes maintain, collect, use or disseminate.
    Official use. Within the context of this part, this term is used 
when officials and employees of a DoD Component have a demonstrated need 
for the use of any record or the information contained therein in the 
performance of their official duties, subject to DoD 5200.1-R \6\ ``DoD 
Information Security Program Regulation.''
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    \6\ See footnote 1 to Sec. 310.1.
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    Personal information. Information about an individual that 
identifies, relates or is unique to, or describes him or her; e.g., a 
social security number, age, military rank, civilian grade, marital 
status, race, salary, home/office phone numbers, etc.
    Privacy Act request. A request from an individual for notification 
as to the existence of, access to, or amendment of records pertaining to 
that individual. These records must be maintained in a system of 
records.
    Member of the public. Any individual or party acting in a private 
capacity to include federal employees or military personnel.
    Record. Any item, collection, or grouping of information, whatever 
the storage media (e.g., paper, electronic, etc.), about an individual 
that is maintained by a DoD Component, including but not limited to, his 
or her education, financial transactions, medical history, criminal or 
employment history and that contains his or her name, or the identifying 
number, symbol, or other identifying particular assigned to the 
individual, such as a finger or voice print or a photograph.
    Risk assessment. An analysis considering information sensitivity, 
vulnerabilities, and the cost to a computer facility or word processing 
activity in safeguarding personal information processed or stored in the 
facility or activity.
    Routine use. The disclosure of a record outside the Department of 
Defense for a use that is compatible with the purpose for which the 
information was collected and maintained by the Department of Defense. 
The routine use must be included in the published system notice for the 
system of records involved.
    Statistical record. A record maintained only for statistical 
research or reporting purposes and not used in whole or in part in 
making determinations about specific individuals.
    System manager. The DoD Component official who is responsible for 
the operation and management of a system of records.
    System of records. A group of records under the control of a DoD 
Component from which personal information is retrieved by the 
individual's name or by some identifying number, symbol, or other 
identifying particular assigned to an individual.

[[Page 824]]

    Word processing system. A combination of equipment employing 
automated technology, systematic procedures, and trained personnel for 
the primary purpose of manipulating human thoughts and verbal or written 
or graphic presentations intended to communicate verbally or visually 
with another individual.
    Word processing equipment. Any combination of electronic hardware 
and computer software integrated in a variety of forms (firmware, 
programable software, handwiring, or similar equipment) that permits the 
processing of textual data. Generally, the equipment contains a device 
to receive information, a computer-like processor with various 
capabilities to manipulate the information, a storage medium, and an 
output device.



Sec. 310.5  Policy.

    It is DoD policy that:
    (a) The personal privacy of an individual shall be respected and 
protected.
    (b) Personal information shall be collected, maintained, used or 
disclosed to ensure that:
    (1) It shall be relevant and necessary to accomplish a lawful DoD 
purpose required to be accomplished by statute or Executive Order.
    (2) It shall be collected to the greatest extent practicable 
directly from the individual.
    (3) The individual shall be informed as to why the information is 
being collected, the authority for collection, what uses will be made of 
it, whether disclosure is mandatory or voluntary, and the consequences 
of not providing that information.
    (4) It shall be relevant, timely, complete and accurate for its 
intended use; and
    (5) Appropriate administrative, technical, and physical safeguards 
shall be established, based on the media (e.g., paper, electronic, etc.) 
involved, to ensure the security of the records and to prevent 
compromise or misuse during storage or transfer.
    (c) No record shall be maintained on how an individual exercises 
rights guaranteed by the First Amendment to the Constitution, except as 
follows:
    (1) Specifically authorized by statute.
    (2) Expressly authorized by the individual on whom the record is 
maintained; or
    (3) When the record is pertinent to and within the scope of an 
authorized law enforcement activity.
    (d) Notices shall be published in the Federal Register and reports 
shall be submitted to Congress and the Office of Management and Budget, 
in accordance with, and as required by, 5 U.S.C. 552a, OMB Circular A-
130, and DoD 5400.11-R, as to the existence and character of any system 
of records being established or revised by the DoD Components. 
Information shall not be collected, maintained, used, or disseminated 
until the required publication/review requirements, as set forth in 5 
U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R, are satisfied.
    (e) Individuals shall be permitted, to the extent authorized by 5 
U.S.C. 552a and DoD 5400.11-R, to:
    (1) Determine what records pertaining to them are contained in a 
system of records.
    (2) Gain access to such records and to obtain a copy of those 
records or a part thereof.
    (3) Correct or amend such records on a showing that the records are 
not accurate, relevant, timely or complete.
    (4) Appeal a denial of access or a request for amendment.
    (f) Disclosure of records pertaining to an individual from a system 
of records shall be prohibited except with the consent of the individual 
or as otherwise authorized by 5 U.S.C. 552a, DoD 5400.11-R, and DoD 
5400.7-R.\7\ When disclosures are made, the individual shall be 
permitted, to the extent authorized by 5 U.S.C. and DoD 5400.11-R, to 
seek an accounting of such disclosures from the DoD Component making the 
release.
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    \7\ See footnote 1 to Sec. 310.1.
---------------------------------------------------------------------------

    (g) Disclosure of records pertaining to personnel of the National 
Security Agency, the Defense Intelligence Agency, the National 
Reconnaissance Office, and the National Imagery and Mapping Agency shall 
be prohibited to the extent authorized by Pub. L. 86-36 (1959) and 10 
U.S.C. 424.
    (h) Computer matching programs between the DoD Components and the

[[Page 825]]

Federal, State, or local governmental agencies shall be conducted in 
accordance with the requirements of 5 U.S.C. 552a, OMB Circular A-130, 
and DoD 5400.11-R.
    (i) DoD personnel and system managers shall conduct themselves, 
consistent with Sec. 310.8 so that personal information to be stored in 
a system of records only shall be collected, maintained, used, and 
disseminated as is authorized by this part, 5 U.S.C. 552a, and DoD 
5400.11-R.



Sec. 310.6  Responsibilities.

    (a) The Director of Administration and Management, Office of the 
Secretary of Defense, shall:
    (1) Serve as the Senior Privacy Official for the Department of 
Defense.
    (2) Provide policy guidance for, and coordinate and oversee 
administration of, the DoD Privacy Program to ensure compliance with 
policies and procedures in 5 U.S.C. 552a and OMB A-130.
    (3) Publish DoD 5400.11-R and other guidance, to include Defense 
Privacy Board Advisory Opinions, to ensure timely and uniform 
implementation of the DoD Privacy Program.
    (4) Serve as the Chair to the Defense Privacy Board and the Defense 
Data Integrity Board (Sec. 310.7).
    (b) The Director of Washington Headquarters Services shall supervise 
and oversee the activities of the Defense Privacy Office (Sec. 310.7).
    (c) The General Counsel of the Department of Defense shall:
    (1) Provide advice and assistance on all legal matters arising out 
of, or incident to, the administration of the DoD Privacy Program.
    (2) Review and be the final approval authority on all advisory 
opinions issued by the Defense Privacy Board or the Defense Privacy 
Board Legal Committee.
    (3) Serve as a member of the Defense Privacy Board, the Defense Data 
Integrity Board, and the Defense Privacy Board Legal Committee (Sec. 
310.7).
    (d) The Secretaries of the Military Departments and the Heads of the 
Other DoD Components shall:
    (1) Provide adequate funding and personnel to establish and support 
an effective DoD Privacy Program, to include the appointment of a senior 
official to serve as the principal point of contact (POC) for DoD 
Privacy Program matters.
    (2) Establish procedures, as well as rules of conduct, necessary to 
implement this part and DoD 5400.11-R so as to ensure compliance with 
the requirements of 5 U.S.C. 552a and OMB Circular A-130.
    (3) Conduct training, consistent with the requirements of DoD 
5400.11-R, on the provisions of this part, 5 U.S.C. 552a, and OMB 
Circular A-130, and DoD 5400.11-R, for assigned and employed personnel 
and for those individuals having primary responsibility for implementing 
the DoD Privacy Program.
    (4) Ensure that the DoD Privacy Program periodically shall be 
reviewed by the Inspectors General or other officials, who shall have 
specialized knowledge of the DoD Privacy Program.
    (5) Submit reports, consistent with the requirements of DoD 5400.11-
R, as mandated by 5 U.S.C. 552a and Chapter 8, OMB Circular A-130, and 
32 CFR part 275, and as otherwise directed by the Defense Privacy 
Office.
    (e) The Secretaries of the Military Departments shall provide 
support to the Combatant Commands, as identified in DoD Directive 
5100.3,\8\ in the administration of the DoD Privacy Program.
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    \8\ See footnote 1 to Sec. 310.1.
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Sec. 310.7  Information requirements.

    The reporting requirements in Sec. 310.6(d)(5) are assigned Report 
Control Symbol DD-DA&M(A)1379.



Sec. 310.8  Rules of conduct.

    (a) DoD personnel shall:
    (1) Take such actions, as considered appropriate, to ensure that 
personal information contained in a system of records, to which they 
have access to or are using incident to the conduct of official 
business, shall be protected so that the security and confidentiality of 
the information shall be preserved.
    (2) Not disclose any personal information contained in any system of 
records except as authorized by DoD 5400.11-R or other applicable law or 
regulation. Personnel willfully making such a disclosure when knowing 
that disclosure is prohibited are subject to

[[Page 826]]

possible criminal penalties and/or administrative sanctions.
    (3) Report any unauthorized disclosures of personal information from 
a system of records or the maintenance of any system of records that are 
not authorized by this part to the applicable Privacy POC for his or her 
DoD Component.
    (b) DoD system managers for each system of records shall:
    (1) Ensure that all personnel who either shall have access to the 
system of records or who shall develop or supervise procedures for 
handling records in the system of records shall be aware of their 
responsibilities for protecting personal information being collected and 
maintained under the DoD Privacy Program.
    (2) Prepare promptly any required new, amended, or altered system 
notices for the system of records and submit them through their DoD 
Component Privacy POC to the Defense Privacy Office for publication in 
the Federal Register.
    (3) Not maintain any official files on individuals that are 
retrieved by name or other personal identifier without first ensuring 
that a notice for the system of records shall have been published in the 
Federal Register. Any official who willfully maintains a system of 
records without meeting the publication requirements, as prescribed by 5 
U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R, is subject to 
possible criminal penalties and/or administrative sanctions.



Sec. 310.9  Privacy boards and office composition and responsibilities.

    (a) The Defense Privacy Board.--(1) Membership. The Board shall 
consist of the Director of Administration and Management, OSD (DA&M), 
who shall serve as the Chair; the Director of the Defense Privacy 
Office, Washington Headquarters Services (WHS), who shall serve as the 
Executive Secretary and as a member; the representatives designated by 
the Secretaries of the Military Departments; and the following officials 
or their designees: the Deputy Under Secretary of Defense for Program 
Integration (DUSD(PI)); the Assistant Secretary of Defense for Command, 
Control, Communications, and Intelligence (ASD(C31)); the Director, 
Freedom of Information and Security Review, WHS; the General Counsel of 
the Department of Defense (GC, DoD); and the Director for Information 
Operations and Reports, WHS (DIO&R). The designees also may be the 
principal POC for the DoD Component for privacy matters.
    (2) Responsibilities. (i) The Board shall have oversight 
responsibility for implementation of the DoD Privacy Program. It shall 
ensure that the policies, practices, and procedures of that Program are 
premised on the requirements of 5 U.S.C. 552a and OMB Circular A-130, as 
well as other pertinent authority, and that the Privacy Programs of the 
DoD Component are consistent with, and in furtherance of, the DoD 
Privacy Program.
    (ii) The Board shall serve as the primary DoD policy forum for 
matters involving the DoD Privacy Program, meeting as necessary, to 
address issues of common concern so as to ensure that uniform and 
consistent policy shall be adopted and followed by the DoD Components. 
The Board shall issue advisory opinions as necessary on the DoD Privacy 
Program so as to promote uniform and consistent application of 5 U.S.C. 
552a, OMB Circular A-130, and DoD 5400.11-R.
    (iii) Perform such other duties as determined by the Chair or the 
Board.
    (b) The Defense Data Integrity Board.--(1) Membership. The Board 
shall consist of the DA&M, OSD, who shall serve as the Chair; the 
Director of the Defense Privacy Office, WHS, who shall serve as the 
Executive Secretary; and the following officials or their designees: the 
representatives designated by the Secretaries of the Military 
Departments; the DUSD (PI); the ASD(C3I); the GC, DoD; the IG, DoD; the 
DIOR (WHS); and the Director, Defense Manpower Data Center. The 
designees also may be the principal POC for the DoD Component for 
privacy matters.
    (2) Responsibilities. (i) The Board shall oversee and coordinate, 
consistent with the requirements of 5 U.S.C. 552a, OMB Circular A-130, 
and DoD 5400.11-R, all computer matching programs involving personal 
records contained in system of records maintained by the DoD Components.

[[Page 827]]

    (ii) The Board shall review and approve all computer matching 
agreements between the Department of Defense and the other Federal, 
State or local governmental agencies, as well as memoranda of 
understanding when the match is internal to the Department of Defense, 
to ensure that, under 5 U.S.C. 552a, and OMB Circular A-130 and DoD 
5400.11-R, appropriate procedural and due process requirements shall 
have been established before engaging in computer matching activities.
    (c) The Defense Privacy Board Legal Committee.--(1) Membership. The 
Committee shall consist of the Director, Defense Privacy Office, WHS, 
who shall serve as the Chair and the Executive Secretary; the GC, DoD, 
or designee; and civilian and/or military counsel from each of the DoD 
Components. The General Counsels (GCs) and The Judge Advocates General 
of the Military Departments shall determine who shall provide 
representation for their respective Department to the Committee. That 
does not preclude representation from each office. The GCs of the other 
DoD Components shall provide legal representation to the Committee. 
Other DoD civilian or military counsel may be appointed by the Executive 
Secretary, after coordination with the DoD Component concerned, to serve 
on the Committee on those occasions when specialized knowledge or 
expertise shall be required.
    (2) Responsibilities. (i) The Committee shall serve as the primary 
legal forum for addressing and resolving all legal issues arising out of 
or incident to the operation of the DoD Privacy Program.
    (ii) The Committee shall consider legal questions regarding the 
applicability of 5 U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R 
and questions arising out of or as a result of other statutory and 
regulatory authority, to include the impact of judicial decisions, on 
the DoD Privacy Program. The Committee shall provide advisory opinions 
to the Defense Privacy Board and, on request, to the DoD Components.
    (c) The Defense Privacy Office.--(1) Membership. It shall consist of 
a Director and a staff. The Director also shall serve as the Executive 
Secretary and a member of the Defense Privacy Board; as the Executive 
Secretary to the Defense Data Integrity Board; and as the Chair and the 
Executive Secretary to the Defense Privacy Board Legal Committee.
    (2) Responsibilities. (i) Manage activities in support of the 
Privacy Program oversight responsibilities of the DA&M.
    (ii) Provide operational and administrative support to the Defense 
Privacy Board, the Defense Data Integrity Board, and the Defense Privacy 
Board Legal Committee.
    (iii) Direct the day-to-day activities of the DoD Privacy Program.
    (iv) Provide guidance and assistance to the DoD Components in their 
implementation and execution of the DoD Privacy Program.
    (v) Review proposed new, altered, and amended systems of records, to 
include submission of required notices for publication in the Federal 
Register and, when required, providing advance notification to the 
Office of Management and Budget (OMB) and the Congress, consistent with 
5 U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R.
    (vi) Review proposed DoD Component privacy rulemaking, to include 
submission of the rule to the Office of the Federal Register for 
publication and providing to the OMB and the Congress reports, 
consistent with 5 U.S.C. 552a, OMB Circular A-130, and DoD 5400.11-R, 
and to the Office of the Comptroller General of the United States, 
consistent with 5 U.S.C. Chapter 8.
    (vii) Develop, coordinate, and maintain all DoD computer matching 
agreements, to include submission of required match notices for 
publication in the Federal Register and advance notification to the OMB 
and the Congress of the proposed matches, consistent with 5 U.S.C. 552a, 
OMB Circular A-130, and DoD 5400.11-R.
    (viii) Provide advice and support to the DoD Components to ensure 
that:
    (A) All information requirements developed to collect or maintain 
personal data conform to DoD Privacy Program standards.
    (B) Appropriate procedures and safeguards shall be developed, 
implemented, and maintained to protect personal information when it is 
stored in

[[Page 828]]

either a manual and/or automated system of records or transferred by 
electronic on non-electronic means; and
    (C) Specific procedures and safeguards shall be developed and 
implemented when personal data is collected and maintained for research 
purposes.
    (ix) Serve as the principal POC for coordination of privacy and 
related matters with the OMB and other Federal, State, and local 
governmental agencies.
    (x) Compile and submit the ``Biennial `Privacy Act' Report'' and the 
``Biennial Matching Activity Report'' to the OMB as required by OMB 
Circular A-130 and DoD 5400.11-R
    (xi) Update and maintain this part and DoD 5400.11-R.



                      Subpart B_Systems of Records



Sec. 310.10  General.

    (a) System of records. To be subject to the provisions of this part 
a ``system of records'' must:
    (1) Consist of ``records'' (as defined in Sec. 310.3(n)) that are 
retrieved by the name of an individual or some other personal 
identifier, and
    (2) Be under the control of a DoD Component.
    (b) Retrieval practices. (1) Records in a group of records that may 
be retrieved by a name or personal identifier are not covered by this 
part even if the records contain personal data and are under control of 
a DoD Component. The records must be, in fact, retrieved by name or 
other personal identifier to become a system of records for the purpose 
of this part.
    (2) If files that are not retrieved by name or personal identifier 
are rearranged in such manner that they are retrieved by name or 
personal identifier, a new systems notice must be submitted in 
accordance with Sec. 310.63(c) of subpart G.
    (3) If records in a system of records are rearranged so that 
retrieval is no longer by name or other personal identifier, the records 
are no longer subject to this part and the system notice for the records 
shall be deleted in accordance with Sec. 310.64(c) of subpart G.
    (c) Relevance and necessity. Retain in a system of records only that 
personal information which is relevant and necessary to accomplish a 
purpose required by a federal statute or an Executive Order.
    (d) Authority to establish systems of records. Identify the specific 
statute or the Executive Order that authorize maintaining personal 
information in each system of records. The existance of a statute or 
Executive order mandating the maintenance of a system of records does 
not abrogate the responsibility to ensure that the information in the 
system of records is relevant and necessary.
    (e) Exercise of First Amendment rights. (1) Do not maintain any 
records describing how an individual exercises his or her rights 
guaranteed by the First Amendment of the U.S. Constitution except when:
    (i) Expressly authorized by federal statute;
    (ii) Expressly authorized by the individual; or
    (iii) Maintenance of the information is pertinent to and within the 
scope of an authorized law enforcement activity.
    (2) First Amendment rights include, but are not limited to, freedom 
of religion, freedom of political beliefs, freedom of speech, freedom of 
the press, the right to assemble, and the right to petition.
    (f) System manager's evaluation. (1) Evaluate the information to be 
included in each new system before establishing the system and evaluate 
periodically the information contained in each existing system of 
records for relevancy and necessity. Such a review shall also occur when 
a system notice amendment or alteration is prepared (see Sec. Sec. 
310.63 and 310.64 of subpart G).
    (2) Consider the following:
    (i) The relationship of each item of information retained and 
collected to the purpose for which the system is maintained;
    (ii) The specific impact on the purpose or mission of not collecting 
each category of information contained in the system;
    (iii) The possibility of meeting the information requirements 
through use of information not individually identifiable or through 
other techniques, such as sampling;

[[Page 829]]

    (iv) The length of time each item of personal information must be 
retained;
    (v) The cost of maintaining the information; and
    (vi) The necessity and relevancy of the information to the purpose 
for which it was collected.
    (g) Discontinued information requirements. (1) Stop collecting 
immediately any category or item of personal information from which 
retention is no longer justified. Also excise this information from 
existing records, when feasible.
    (2) Do not destroy any records that must be retained in accordance 
with disposal authorizations established under 44 U.S.C. 303a, 
``Examination by the Administrator of General Services of Lists and 
Schedules of Records Lacking Preservation Value, Disposal of Records.''

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
and amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.11  Standards of accuracy.

    (a) Accuracy of information maintained. Maintain all personal 
information that is used or may be used to make any determination about 
an individual with such accuracy, relevance, timeliness, and 
completeness as is reasonably necessary to ensure fairness to the 
individual in making any such determination.
    (b) Accuracy determination before dissemination. Before 
disseminating any personal information from a system of records to any 
person outside the Department of Defense, other than a federal agency, 
make reasonable efforts to ensure that the information to be disclosed 
is accurate, relevant, timely, and complete for the purpose it is being 
maintained (see also Sec. 310.30(d), subpart D and Sec. 310.40(d), 
subpart E).

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
and amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.12  Government contractors.

    (a) Applicability to government contractors. (1) When a DoD 
Component contracts for the operation or maintenance of a system of 
records or a portion of a system of records by a contractor, the record 
system or the portion of the record system affected are considered to be 
maintained by the DoD Component and are subject to this part. The 
Component is responsible for applying the requirements of this part to 
the contractor. The contractor and its employees are to be considered 
employees of the DoD Component for purposes of the sanction provisions 
of the Privacy Act during the performance of the contract. Consistent 
with the Defense Acquisition Regulation (DAR), Sec. 1.327, ``Protection 
of Individual Privacy'' contracts requiring the maintenance of a system 
of records or the portion of a system of records shall identify 
specifically the record system and the work to be performed and shall 
include in the solicitation and resulting contract such terms as are 
prescribed by the DAR.
    (2) If the contractor must use or have access to individually 
identifiable information subject to this part to perform any part of a 
contract, and the information would have been collected and maintained 
by the DoD Component but for the award of the contract, these contractor 
activities are subject to this Regulation.
    (3) The restriction in paragraphs (a) (1) and (2) of Sec. 310.12 do 
not apply to records:
    (i) Established and maintained to assist in making internal 
contractor management decisions, such as records maintained by the 
contractor for use in managing the contract;
    (ii) Maintained as internal contractor employee records even when 
used in conjunction with providing goods and services to the Department 
of Defense; or
    (iii) Maintained as training records by an educational organization 
contracted by a DoD Component to provide training when the records of 
the contract students are similar to and comingled with training records 
of other students (for example, admission forms, transcripts, academic 
counselling and similar records);
    (iv) Maintained by a consumer reporting agency to which records have 
been disclosed under contract in accordance with the Federal Claims 
Collection Act of 1966, 31 U.S.C. 952(d).
    (4) DoD Components must publish instruction that:

[[Page 830]]

    (i) Furnish DoD Privacy Program guidance to their personnel who 
solicit, award, or administer government contracts;
    (ii) Inform prospective contractors of their responsibilities 
regarding the DoD Privary Program; and
    (iii) Establish an internal system of contractor performance review 
to ensure compliance with the DoD Privacy Program.
    (b) Contracting procedures. The Defense Systems Acquisition 
Regulatory Council (DSARC) is responsible for developing the specific 
policies and procedures to be followed when soliciting bids, awarding 
contracts or administering contracts that are subject to this part.
    (c) Contractor compliance. Through the various contract surveillance 
programs, ensure contractors comply with the procedures established in 
accordance with paragraph (b) above of this subpart.
    (d) Disclosure of records to contractors. Disclosure of personal 
records to a contractor for the use in the performance of any DoD 
contrtact by a DoD Component is considered a disclosure within the 
Department of Defense (see Sec. 310.40(b), subpart E). The contractor 
is considered the agent of the contracting DoD Component and to be 
maintaining and receiving the records for that Component.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
and amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.13  Safeguarding personal information.

    (a) General responsibilities. Establish appropriate administrative, 
technical and physical safeguards to ensure that the records in every 
system of records are protected from unauthorized alteration or 
disclosure and that their confidentiality is protected. Protect the 
records against reasonably anticipated threats or hazards that could 
result in substantial harm, embarrassment, inconvenience, or unfairness 
to any individual about whom information is kept.
    (b) Minimum standards. (1) Tailor system safeguards to conform to 
the type of records in the system, the sensitivity of the personal 
information stored, the storage medium used and, to a degree, the number 
of records maintained.
    (2) Treat all unclassified records that contain personal information 
that normally would be withheld from the public under Exemption Numbers 
6 and 7, of Sec. 286.31, subpart D of 32 CFR part 286 (DoD Freedom of 
Information Act Program) as if they were designated ``For Official Use 
Only'' and safeguard them in accordance with the standards established 
by subpart E of 32 CFR part 286 (DoD FOIA Program) even if they are not 
actually marked ``For Official Use Only.''
    (3) Afford personal information that does not meet the criteria 
discussed in paragraph (c)(3) of this section that degree of security 
which provides protection commensurate with the nature and type of 
information involved.
    (4) Special administrative, physical, and technical procedures are 
required to protect data that is stored or being processed temporarily 
in an automated data processing (ADP) system or in a word processing 
activity to protect it against threats unique to those environments (see 
Appendices A and B).
    (5) Tailor safeguards specifically to the vulnerabilities of the 
system.
    (c) Records disposal. (1) Dispose of records containing personal 
data so as to prevent inadvertent compromise. Disposal methods such as 
tearing, burning, melting, chemical decomposition, pulping, pulverizing, 
shredding, or mutilation are considered adequate if the personal data is 
rendered unrecognizable or beyond reconstruction.
    (2) The transfer of large quantities of records containing personal 
data (for example, computer cards and printouts) in bulk to a disposal 
activity, such as the Defense Property Disposal Office, is not a release 
of personal information under this part. The sheer volume of such 
transfers make it difficult or impossible to identify readily specific 
individual records.
    (3) When disposing of or destroying large quantities of records 
containing personal information, care must be exercised to ensure that 
the bulk of the records is maintained so as to prevent specific records 
from being readily identified. If bulk is maintained, no special 
procedures are required. If bulk

[[Page 831]]

cannot be maintained or if the form of the records make individually 
identifiable information easily available, dispose of the record in 
accordance with paragraph (c)(1) of this section.



                Subpart C_Collecting Personal Information



Sec. 310.20  General considerations.

    (a) Collect directly from the individual. Collect to the greatest 
extent practicable personal information directly from the individual to 
whom it pertains if the information may be used in making any 
determination about the rights, privileges, or benefits of the 
individual under any federal program (see also paragraph (c) of this 
section).
    (b) Collecting Social Security Numbers (SSNs). (1) It is unlawful 
for any federal, state, or local governmental agency to deny an 
individual any right, benefit, or privilege provided by law because the 
individual refuses to provide his or her SSN. However, if a federal 
statute requires that the SSN be furnished or if the SSN is required to 
verify the identity of the individual in a system of records that was 
established and in use before January 1, 1975, and the SSN was required 
as an identifier by a statute or regulation adopted before that date, 
this restriction does not apply.
    (2) When an individual is requested to provide his or her SSN, he or 
she must be advised:
    (i) The uses that will be made of the SSN;
    (ii) The statute, regulation, or rule authorizing the solicitation 
of the SSN; and
    (iii) Whether providing the SSN is voluntary or mandatory.
    (3) Include in any systems notice for any system of records that 
contains SSNs a statement indicating the authority for maintaining the 
SSN and the sources of the SSNs in the system. If the SSN is obtained 
directly from the individual indicate whether this is voluntary or 
mandatory.
    (4) Executive Order 9397, ``Numbering System For Federal Accounts 
Relating to Individual Persons,'' November 30, 1943, authorizes 
solicitation and use of SSNs as numerical identifier for individuals in 
most Federal records systems. However, it does not provide mandatory 
authority for soliciting SSNs.
    (5) Upon entrance into military service or civilian employment with 
the Department of Defense, individuals are asked to provide their SSNs. 
The SSN becomes the service or employment number for the individual and 
is used to establish personnel, financial, medical, and other official 
records. Provide the notification in paragraph (b)(2) of this section to 
the individual when originally soliciting his or her SSN. After an 
individual has provided his or her SSN for the purpose of establishing a 
record, the notification in paragraph (b)(2) is not required if the 
individual is only requested to furnish or verify the SSNs for 
identification purposes in connection with the normal use of his or her 
records. However, if the SSN is to be written down and retained for any 
purpose by the requesting official, the individual must be provided the 
notification required by paragraph (b)(2) of this section.
    (6) Consult the Office of Personnel Management, Federal Personnel 
Manual (5 CFR parts 293, 294, 297 and 735) when soliciting SSNs for use 
in OPM records systems.
    (c) Collecting personal information from third parties. It may not 
be practical to collect personal information directly from the 
individual in all cases. Some examples of this are:
    (1) Verification of information through third party sources for 
security or employment suitability determinations;
    (2) Seeking third party opinions such as supervisory comments as to 
job knowledge, duty performance, or other opinion-type evaluations;
    (3) When obtaining the needed information directly from the 
individual is exceptionally difficult or may result in unreasonable 
costs; or
    (4) Contacting a third party at the request of the individual to 
furnish certain information such as exact periods of employment, 
termination dates, copies of records, or similar information.
    (d) Privacy Act Statements. (1) When an individual is requested to 
furnish personal information about himself or herself for inclusion in a 
system of

[[Page 832]]

records, a Privacy Act Statement is required regardless of the medium 
used to collect the information (forms, personal interviews, stylized 
formats, telephonic interviews, or other methods). The Privacy Act 
Statement consists of the elements set forth in paragraph (d)(2) of this 
section. The statement enables the individual to make an informed 
decision whether to provide the information requested. If the personal 
information solicited is not to be incoporated into a system of records, 
the statement need not be given. However, personal information obtained 
without a Privacy Act Statement shall not be incorporated into any 
system of records. When soliciting SSNs for any purpose, see paragraph 
(b)(2) of this section.
    (2) The Privacy Act Statement shall include:
    (i) The specific federal statute or Executive Order that authorizes 
collection of the requested information (see paragraph (d) of Sec. 
310.10).
    (ii) The principal purpose or purposes for which the information is 
to be used;
    (iii) The routine uses that will be made of the information (see 
Sec. 310.41(e), subpart E);
    (iv) Whether providing the information is voluntary or mandatory 
(see paragraph (e) of this section); and
    (v) The effects on the individual if he or she chooses not to 
provide the requested information.
    (3) The Privacy Act Statement shall be concise, current, and easily 
understood.
    (4) The Privacy Act statement may appear as a public notice (sign or 
poster), conspicuously displayed in the area where the information is 
collected, such as at check-cashing facilities or identification 
photograph facilities.
    (5) The individual normally is not required to sign the Privacy Act 
Statement.
    (6) Provide the individual a written copy of the Privacy Act 
Statement upon request. This must be done regardless of the method 
chosen to furnish the initial advisement.
    (e) Mandatory as opposed to voluntary disclosures. Include in the 
Privacy Act Statement specifically whether furnishing the requested 
personal data is mandatory or voluntary. A requirement to furnish 
personal data is mandatory only when a federal statute, Executive Order, 
regulation, or other lawful order specifically imposes a duty on the 
individual to provide the information sought, and the individual is 
subject to a penalty if he or she fails to provide the requested 
information. If providing the information is only a condition of or 
prerequisite to granting a benefit or privilege and the individual has 
the option of requesting the benefit or privilege, providing the 
information is always voluntary. However, the loss or denial of the 
privilege, benefit, or entitlement sought may be listed as a consequence 
of not furnishing the requested information.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.21  Forms.

    (a) DoD forms. (1) DoD Directive 5000.21, ``Forms Management 
Program'' provides guidance for preparing Privacy Act Statements for use 
with forms (see also paragraph (b)(1) of this section).
    (2) When forms are used to collect personal information, the Privacy 
Act Statement shall appear as follows (listed in the order of 
preference):
    (i) In the body of the form, preferably just below the title so that 
the reader will be advised of the contents of the statement before he or 
she begins to complete the form;
    (ii) On the reverse side of the form with an appropriate annotation 
under the title giving its location;
    (iii) On a tear-off sheet attached to the form; or
    (iv) As a separate supplement to the form.
    (b) Forms issued by non-DoD activities. (1) Forms subject to the 
Privacy Act issued by other federal agencies have a Privacy Act 
Statement attached or included. Always ensure that the statement 
prepared by the originating agency is adequate for the purpose for which 
the form will be used by the DoD activity. If the Privacy Act Statement 
provided is inadequate, the DoD Component concerned shall prepare a new 
statement or a supplement to the existing statement before using the 
form.

[[Page 833]]

    (2) Forms issued by agencies not subject to the Privacy Act (state, 
municipal, and other local agencies) do not contain Privacy Act 
Statements. Before using a form prepared by such agencies to collect 
personal data subject to this part, an appropriate Privacy Act Statement 
must be added.



                     Subpart D_Access by Individuals



Sec. 310.30  Individual access to personal information.

    (a) Individual access. (1) The access provisions of this part are 
intended for use by individuals about whom records are maintained in 
systems of records. Release of personal information to individuals under 
this part is not considered public release of information.
    (2) Make available to the individual to whom the record pertains all 
of the personal information that can be released consistent with DoD 
responsibilities.
    (b) Individual requests for access. Individuals shall address 
requests for access to personal information in a system of records to 
the system manager or to the office designated in the DoD Component 
rules or the system notice.
    (c) Verification of identity. (1) Before granting access to personal 
data, an individual may be required to provide reasonable verification 
of his or her identity.
    (2) Identity verification procedures shall not:
    (i) Be so complicated as to discourage unnecessarily individuals 
from seeking access to information about themselves; or
    (ii) Be required of an individual seeking access to records which 
normally would be available under the ``DoD Freedom of Information Act 
Program'' (32 CFR part 286).
    (3) Normally, when individuals seek personal access to records 
pertaining to themselves, identification is made from documents that 
normally are readily available, such as employee and military 
identification cards, driver's license, other licenses, permits or 
passes used for routine identification purposes.
    (4) When access is requested by mail, identity verification may 
consist of the individual providing certain minimum identifying data, 
such as full name, date and place of birth, or such other personal 
information necessary to locate the record sought. If the information 
sought is of a sensitive nature, additional identifying data may be 
required. If notarization of requests is required, procedures shall be 
established for an alternate method of verification for individuals who 
do not have access to notary services, such as military members 
overseas.
    (5) If an individual wishes to be accompanied by a third party when 
seeking access to his or her records or to have the records released 
directly to a third party, the individual may be required to furnish a 
signed access authorization granting the third party access.
    (6) An individual shall not be refused access to his or her record 
solely because he or she refuses to divulge his or her SSN unless the 
SSN is the only method by which retrieval can be made. (See Sec. 
310.20(b)).
    (7) The individual is not required to explain or justify his or her 
need for access to any record under this part.
    (8) Only a denial authority may deny access and the denial must be 
in writing and contain the information required by paragraph (b) of 
Sec. 310.31.
    (d) Granting individual access to records. (1) Grant the individual 
access to the original record or an exact copy of the original record 
without any changes or deletions, except when changes or deletions have 
been made in accordance with paragraph (e) of this section. For the 
purpose of granting access, a record that has been amended under Sec. 
310.31(b) is considered to be the original. See pargraph (e) of this 
section for the policy regarding the use of summaries and extracts.
    (2) Provide exact copies of the record when furnishing the 
individual copies of records under this part.
    (3) Explain in terms understood by the requestor any record or 
portion of a record that is not clear.
    (e) Illegible, incomplete, or partially exempt records. (1) Do not 
deny an individual access to a record or a copy of a record solely 
because the physical condition or format of the record does not make it 
readily available (for example, deteriorated state or on magnetic

[[Page 834]]

tape). Either prepare an extract or recopy the document exactly.
    (2) If a portion of the record contains information that is exempt 
from access, an extract or summary containing all of the information in 
the record that is releasable shall be prepared.
    (3) When the physical condition of the record or its state makes it 
necessary to prepare an extract for release, ensure that the extract can 
be understood by the requester.
    (4) Explain to the requester all deletions or changes to the 
records.
    (f) Access to medical records. (1) Disclose medical records to the 
individual to whom they pertain, even if a minor, unless a judgment is 
made that access to such records could have an adverse effect on the 
mental or physical health of the individual. Normally, this 
determination shall be made in consultation with a medical doctor.
    (2) If it is determined that the release of the medical information 
may be harmful to the mental or physical health of the individual:
    (i) Send the record to a physician named by the individual; and
    (ii) In the transmittal letter to the physician explain why access 
by the individual without proper professional supervision could be 
harmful (unless it is obvious from the record).
    (3) Do not require the physician to request the records for the 
individual.
    (4) If the individual refuses or fails to designate a physician, the 
record shall not be provided. Such refusal of access is not considered a 
denial for Privacy Act reporting purposes. (See paragraph (a) of Sec. 
310.31).
    (5) Access to a minor's medical records may be granted to his or her 
parents or legal guardians. However, observe the following procedures:
    (i) In the United States, the laws of the particular state in which 
the records are located may afford special protection to certain types 
of medical records (for example, records dealing with treatment for drug 
or alcohol abuse and certain psychiatric records). Even if the records 
are maintained by a military medical facilities these statutes may 
apply.
    (ii) For the purposes of parental access to the medical records and 
medical determinations regarding minors at overseas installation the age 
of majority is 18 years except when:
    (A) A minor at the time he or she sought or consented to the 
treatment was between 15 and 17 years of age;
    (B) The treatment was sought in a program which was authorized by 
regulation or statute to offer confidentiality of treatment records as a 
part of the program;
    (C) The minor specifically requested or indicated that he or she 
wished the treatment record to be handled with confidence and not 
released to a parent or guardian; and
    (D) The parent or guardian seeking access does not have the written 
authorization of the minor or a valid court order granting access.
    (iii) If all four of the above conditions are met, the parent or 
guardian shall be denied access to the medical records of the minor. Do 
not use these procedures to deny the minor access to his or her own 
records under this part or any other statutes.
    (6) All members of the Military Services and all married persons are 
not considered minors regardless of age, and the parents of these 
individuals do not have access to their medical records without written 
consent of the individual.
    (g) Access to information compiled in anticipation of civil action. 
(1) An individual is not entitled under this part to gain access to 
information compiled in reasonable anticipation of a civil action or 
proceeding.
    (2) The term ``civil proceeding'' is intended to include quasi-
judicial and pretrial judicial proceedings that are the necessary 
preliminary steps to formal litigation.
    (3) Attorney work products prepared in conjunction with quasi-
judicial pretrial, and trial proceedings, to include those prepared to 
advise DoD Component officials of the possible legal consequences of a 
given course of action, are protected.
    (h) Access to investigatory records. (1) Requests by individuals for 
access to investigatory records pertaining to themselves and compiled 
for law enforcement purposes are processed under

[[Page 835]]

this part of the DoD Freedom of Information Program (32 CFR part 286) 
depending on which part gives them the greatest degree of access.
    (2) Process requests by individuals for access to investigatory 
record pertaining to themselves compiled for law enforcement purposes 
and in the custody of law enforcement activities that have been 
incorporated into systems of records exempted from the access provisions 
of this part in accordance with section B of chapter 5 under reference 
(f). Do not deny an individual access to the record solely because it is 
in the exempt system, but give him or her automatically the same access 
he or she would receive under the Freedom of Information Act (5 U.S.C. 
552). (See also paragraph (h) of this section.)
    (3) Process requests by individuals for access to investigatory 
records pertaining to themselves that are in records systems exempted 
from access provisions under paragraph (a) of Sec. 310.52, subpart F, 
under this part, or the DoD Freedom of Information Act Program (32 CFR 
part 286) depending upon which regulation gives the greatest degree of 
access (see also paragraph (j) of this section).
    (4) Refer individual requests for access to investigatory records 
exempted from access under a general exemption temporarily in the hands 
of a noninvestigatory element for adjudicative or personnel actions to 
the originating investigating agency. Inform the requester in writing of 
these referrals.
    (i) Nonagency records. (1) Certain documents under the physical 
control of DoD personnel and used to assist them in performing official 
functions, are not considered ``agency records'' within the meaning of 
this Regulation. Uncirculated personal notes and records that are not 
disseminated or circulated to any person or organization (for example, 
personal telephone lists or memory aids) that are retained or discarded 
at the author's discretion and over which the Component exercises no 
direct control, are not considered agency records. However, if personnel 
are officially directed or encouraged, either in writing or orally, to 
maintain such records, they may become ``agency records,'' and may be 
subject to this part.
    (2) The personal uncirculated handwritten notes of unit leaders, 
office supervisors, or military supervisory personnel concerning 
subordinates are not systems of records within the meaning of this part. 
Such notes are an extension of the individual's memory. These notes, 
however, must be maintained and discarded at the discretion of the 
individual supervisor and not circulated to others. Any established 
requirement to maintain such notes (such as, written or oral directives, 
regulations, or command policy) make these notes ``agency records'' and 
they then must be made a part of a system of records. If the notes are 
circulated, they must be made a part of a system of records. Any action 
that gives personal notes the appearance of official agency records is 
prohibited, unless the notes have been incorporated into a system of 
records.
    (j) Relationship between the Privacy Act and the Freedom of 
Information Act. (1) Process requests for individual access as follows:
    (i) Requests by individuals for access to records pertaining to 
themselves made under the Freedom of Information Act (5 U.S.C. 552) or 
the DoD Freedom of Information Act Program (32 CFR part 286) or DoD 
Component instuctions implementing the DoD Freedom of Information Act 
Program are processed under the provisions of that reference.
    (ii) Requests by individuals for access to records pertaining to 
themselves made under the Privacy Act of 1971 (5 U.S.C. 552a), this 
part, or the DoD Component instructions implementing this part are 
processed under this part.
    (iii) Requests by individuals for access to records about themselves 
that cite both Acts or the implementing regulations and instructions for 
both Acts are processed under this part except:
    (A) When the access provisions of the DoD Freedom of Information Act 
Program (32 CFR part 286) provide a greater degree of access; or
    (B) When access to the information sought is controlled by another 
federal statute.
    (C) If the former applies, follow the provisions of 32 CFR part 286; 
and if the

[[Page 836]]

later applies, follow the access procedures established under the 
controlling statute.
    (iv) Requests by individuals for access to information about 
themselves in systems of records that do not cite either Act or the 
implementing regulations or instructions for either Act are processed 
under the procedures established by this part. However, there is no 
requirement to cite the specific provisions of this part or the Privacy 
Act (5 U.S.C. 552a) when responding to such requests. Do not count these 
requests as Privacy Act request for reporting purposes (see subpart I).
    (2) Do not deny individuals access to personal information 
concerning themselves that would otherwise be releasable to them under 
either Act solely because they fail to cite either Act or cite the wrong 
Act, regulation, or instruction.
    (3) Explain to the requester which Act or procedures have been used 
when granting or denying access under either Act (see also paragraph 
(j)(1)(iv) of this section).
    (k) Time limits. Normally acknowledge requests for access within 10 
working days after receipt and provide access within 30 working days.
    (l) Privacy case file. Establish a Privacy Act case file when 
required (see paragraph (p) of Sec. 310.32 of this subpart).

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.31  Denial of individual access.

    (a) Denying individual access. (1) An individual may be denied 
formally access to a record pertaining to him or her only if the record:
    (i) Was compiled in reasonable anticipation of civil action (see 
paragraph (g) of Sec. 310.30)
    (ii) Is in a system of records that has been exempted from the 
access provisions of this regulation under one of the permitted 
exemptions (see subpart F).
    (iii) Contains classified information that has been exempted from 
the access provision of this part under blanket exemption for such 
material claimed for all DoD records system (see Sec. 310.50(c) of 
subpart F).
    (iv) Is contained in a system of records for which access may be 
denied under some other federal statute.
    (2) Only deny the individual access to those portions of the records 
from which the denial of access serves some legitimate governmental 
purpose.
    (b) Other reasons to refuse access. (1) An individual may be refused 
access if:
    (i) The record is not described well enough to enable it to be 
located with a reasonable amount of effort on the part of an employee 
familiar with the file; or
    (ii) Access is sought by an individual who fails or refuses to 
comply with the established procedural requirements, including refusing 
to name a physician to receive medical records when required (see 
paragraph (f) of Sec. 310.30) or to pay fees (see Sec. 310.33 of this 
subpart).
    (2) Always explain to the individual the specific reason access has 
been refused and how he or she may obtain access.
    (c) Notifying the individual. Formal denials of access must be in 
writing and include as a minimum:
    (1) The name, title or position, and signature of a designated 
Component denial authority;
    (2) The date of the denial;
    (3) The specific reason for the denial, including specific citation 
to the appropriate sections of the Privacy Act (5 U.S.C. 552a) or other 
statutes, this part, DoD Component instructions or Code of Federal 
Regulations (CFR) authorizing the denial;
    (4) Notice to the individual of his or her right to appeal the 
denial through the Component appeal procedure within 60 calendar days; 
and
    (5) The title or position and address of the Privacy Act appeals 
official for the Component.
    (d) DoD Component appeal procedures. Establish internal appeal 
procedures that, as a minimum, provide for:
    (1) Review by the head of the Component or his or her designee of 
any appeal by an individual from a denial of access to Component 
records.
    (2) Formal written notification to the individual by the appeal 
authority that shall:
    (i) If the denial is sustained totally or in part, include as a 
minimum:

[[Page 837]]

    (A) The exact reason for denying the appeal to include specific 
citation to the provisions of the Act or other statute, this part, 
Component instructions or the CFR upon which the determination is based;
    (B) The date of the appeal determination;
    (C) The name, title, and signature of the appeal authority;
    (D) A statement informing the applicant of his or her right to seek 
judicial relief.
    (ii) If the appeal is granted, notify the individual and provide 
access to the material to which access has been granted.
    (3) The written appeal notification granting or denying access is 
the final Component action as regards access.
    (4) The individual shall file any appeals from denial of access 
within no less than 60 calendar days of receipt of the denial 
notification.
    (5) Process all appeals within 30 days of receipt unless the appeal 
authority determines that a fair and equitable review cannot be made 
within that period. Notify the applicant in writing if additional time 
is required for the appellate review. The notification must include the 
reasons for the delay and state when the individual may expect an answer 
to the appeal.
    (e) Denial of appeals by failure to act. A requester may consider 
his or her appeal formally denied if the authority fails:
    (1) To act on the appeal within 30 days;
    (2) To provide the requester with a notice of extension within 30 
days; or
    (3) To act within the time limits established in the Component's 
notice of extension (see paragraph (d)(5) of this section).
    (f) Denying access to OPM records held by DoD Components. (1) The 
records in all systems of records maintained in accordance with the OPM 
government-wide system notices are technically only in the temporary 
custody of the Department of Defense.
    (2) All requests for access to these records must be processed in 
accordance with the Federal Personnel Manual (5 CFR parts 293, 294, 297 
and 735) as well as the applicable Component procedures.
    (3) When a DoD Component refuses to grant access to a record in an 
OPM system, the Component shall instruct the individual to direct his or 
her appeal to the appropriate Component appeal authority, not the Office 
of Personnel Management.
    (4) The Component is responsible for the administrative review of 
its denial of access to such records.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.32  Amendment of records.

    (a) Individual review and correction. Individuals are encouraged to 
review the personnel information being maintained about them by DoD 
Components periodically and to avail themselves of the procedures 
established by this part and any other Component regulations to update 
their records.
    (b) Amending records. (1) An individual may request the amendment of 
any record contained in a system of records pertaining to him or her 
unless the system of record has been exempted specifically from the 
amendment procedures of this part under paragraph (b) of Sec. 310.50, 
subpart F. Normally, amendments under this part are limited to 
correcting factual matters and not matters of official judgment, such as 
performance ratings, promotion potential, and job performance 
appraisals.
    (2) While a Component may require that the request for amendment be 
in writing, this requirement shall not be used to discourage individuals 
from requesting valid amendments or to burden needlessly the amendment 
process.
    (3) A request for amendment must include:
    (i) A description of the item or items to be amended;
    (ii) The specific reason for the amendment;
    (iii) The type of amendment action sought (deletion, correction, or 
addition); and
    (iv) Copies of available documentary evidence supporting the 
request.
    (c) Burden of proof. The applicant must support adequately his or 
her claim.
    (d) Identification of requesters. (1) Individuals may be required to 
provide

[[Page 838]]

identification to ensure that they are indeed seeking to amend a record 
pertaining to themselves and not, inadvertently or intentionally, the 
record of others.
    (2) The indentification procedures shall not be used to discourage 
legitimate requests or to burden needlessly or delay the amendment 
process. (See paragraph (c) of Sec. 310.30).
    (e) Limits on attacking evidence previously submitted. (1) The 
amendment process is not intended to permit the alteration of evidence 
presented in the course of judicial or quasi-judicial proceedings. Any 
amendments or changes to these records normally are made through the 
specific procedures established for the amendment of such records.
    (2) Nothing in the amendment process is intended or designed to 
permit a collateral attack upon what has already been the subject of a 
judicial or quasi-judicial determination. However, while the individual 
may not attack the accuracy of the judicial or quasi-judicial 
determination under this part, he or she may challenge the accuracy of 
the recording of that action.
    (f) Sufficiency of a request to amend. Consider the following 
factors when evaluating the sufficiency of a request to amend:
    (1) The accuracy of the information itself; and
    (2) The relevancy, timeliness, completeness, and necessity of the 
recorded information for accomplishing an assigned mission or purpose.
    (g) Time limits. (1) Provide written acknowledgement of a request to 
amend within 10 working days of its receipt by the appropriate systems 
manager. There is no need to acknowledge a request if the action is 
completed within 10 working days and the individual is so informed.
    (2) The letter of acknowledgement shall clearly identify the request 
and advise the individual when he or she may expect to be notified of 
the completed action.
    (3) Only under the most exceptional circumstances shall more than 30 
days be required to reach a decision on a request to amend. Document 
fully and explain in the Privacy Act case file (see paragraph (p) of 
this section) any such decision that takes more than 30 days to resolve.
    (h) Agreement to amend. If the decision is made to grant all or part 
of the request for amendment, amend the record accordingly and notify 
the requester.
    (i) Notification of previous recipients. (1) Notify all previous 
recipients of the information, as reflected in the disclosure accounting 
records, that an amendment has been made and the substance of the 
amendment. Recipients who are known to be no longer retaining the 
information need not be advised of the amendment. All DoD Components and 
federal agencies known to be retaining the record or information, even 
if not reflected in a disclosure record, shall be notified of the 
amendment. Advise the requester of these notifications.
    (2) Honor all requests by the requester to notify specific federal 
agencies of the amendment action.
    (j) Denying amendment. If the request for amendment is denied in 
whole or in part, promptly advise the individual in writing of the 
decision to include:
    (1) The specific reason and authority for not amending;
    (2) Notification that he or she may seek further independent review 
of the decision by the head of the Component or his or her designee;
    (3) The procedures for appealing the decision citing the position 
and address of the official to whom the appeal shall be addressed; and
    (4) Where he or she can receive assistance in filing the appeal.
    (k) DoD Component appeal procedures. Establish procedures to ensure 
the prompt, complete, and independent review of each amendment denial 
upon appeal by the individual. These procedures must ensure that:
    (1) The appeal with all supporting materials both that furnished the 
individual and that contained in Component records is provided to the 
reviewing official, and
    (2) If the appeal is denied completely or in part, the individual is 
notified in writing by the reviewing official that:
    (i) The appeal has been denied and the specific reason and authority 
for the denial;

[[Page 839]]

    (ii) The individual may file a statement of disagreement with the 
appropriate authority and the procedures for filing this statement;
    (iii) If filed properly, the statement of disagreement shall be 
included in the records, furnished to all future recipients of the 
records, and provided to all prior recipients of the disputed records 
who are known to hold the record; and
    (iv) The individual may seek a judicial review of the decision not 
to amend.
    (3) If the record is amended, ensure that:
    (i) The requester is notified promptly of the decision;
    (ii) All prior known recipients of the records who are known to be 
retaining the record are notified of the decision and the specific 
nature of the amendment (see paragraph (i) of this section); and
    (iii) The requester is notified as to which DoD Components and 
federal agencies have been told of the amendment.
    (4) Process all appeals within 30 days unless the appeal authority 
determines that a fair review cannot be made within this time limit. If 
additional time is required for the appeal, notify the requester, in 
writing, of the delay, the reason for the delay, and when he or she may 
expect a final decision on the appeal. Document fully all requirements 
for additional time in the Privacy Case File. (See paragraph (p) of this 
section)
    (l) Denying amendment of OPM records held by DoD Components. (1) The 
records in all systems of records controlled by the Office of Personnel 
Management (OPM) government-wide system notices are technically only 
temporarily in the custody of the Department of Defense.
    (2) All requests for amendment of these records must be processed in 
accordance with the OPM Federal Personnel Manual (5 CFR parts 293, 294, 
297 and 735). The Component denial authority may deny a request. 
However, the appeal process for all such denials must include a review 
by the Assistant Director for Agency Compliance and Evaluation, Office 
of Personnel Management, 1900 E Street NW, Washington, DC 20415.
    (3) When an appeal is received from a Component's denial of 
amendment of the OPM controlled record, process the appeal in accordance 
with the OPM Federal Personnel Manual (5 CFR parts 293, 294, 297 and 
735) and notify the OPM appeal authority listed above.
    (4) The individual may appeal any Component decision not to amend 
the OPM records directly to OPM.
    (5) OPM is the final review authority for any appeals from a denial 
to amend the OPM records.
    (m) Statements of disagreement submitted by individuals. (1) If the 
reviewing authority refuses to amend the record as requested, the 
individual may submit a concise statement of disagreement setting forth 
his or her reasons for disagreeing with the decision not to amend.
    (2) If an individual chooses to file a statement of disagreement, 
annotate the record to indicate that the statement has been filed (see 
paragraph (n) of this section).
    (3) Furnish copies of the statement of disagreement to all DoD 
Components and federal agencies that have been provided copies of the 
disputed information and who may be maintaining the information.
    (n) Maintaining statements of disagreement. (1) When possible, 
incorporate the statement of disagreement into the record.
    (2) If the statement cannot be made a part of the record, establish 
procedures to ensure that it is apparent from the records that a 
statement of disagreement has been filed and maintain the statement so 
that it can be obtained readily when the disputed information is used or 
disclosed.
    (3) Automated record systems that are not programed to accept 
statements of disagreement shall be annotated or coded so that they 
clearly indicate that a statement of disagreement is on file, and 
clearly identify the statement with the disputed information in the 
system.
    (4) Provide a copy of the statement of disagreement whenever the 
disputed information is disclosed for any purpose.

[[Page 840]]

    (o) DoD Component summaries of reasons for refusing to amend. (1) A 
summary of reasons for refusing to amend may be included with any record 
for which a statement of disagreement is filed.
    (2) Include in this summary only the reasons furnished to the 
individual for not amending the record. Do not include comments on the 
statement of disagreement. Normally, the summary and statement of 
disagreement are filed together.
    (3) When disclosing information for which a summary has been filed, 
a copy of the summary may be included in the release, if the Component 
desires.
    (p) Privacy Case Files. (1) Establish a separate Privacy Case File 
to retain the documentation received and generated during the amendment 
or access process.
    (2) The Privacy Case File shall contain as a minimum:
    (i) The request for amendment or access;
    (ii) Copies of the DoD Component's reply granting or denying the 
request;
    (iii) Any appeals from the individual;
    (iv) Copies of the action regarding the appeal with supporting 
documentation which is not in the basic file; and
    (v) Any other correspondence generated in processing the appeal, to 
include coordination documentation.
    (3) Only the items listed in paragraphs (p)(4) and (s) of this 
section may be included in the system of records challenged for 
amendment or for which access is sought. Do not retain copies of 
unamended records in the basic record system if the request for 
amendment is granted.
    (4) The following items relating to an amendment request may be 
included in the disputed record system:
    (i) Copies of the amended record.
    (ii) Copies of the individual's statement of disagreement (see 
paragraph (m) of this section).
    (iii) Copies of Component summaries (see paragraph (o) of this 
section).
    (iv) Supporting documentation submitted by the individual.
    (5) The following items relating to an access request may be 
included in the basic records system:
    (i) Copies of the request;
    (ii) Copies of the Component's action granting total access.

    Note. A separate Privacy case file need not be created in such 
cases.

    (iii) Copies of the Component's action denying access;
    (iv) Copies of any appeals filed;
    (v) Copies of the reply to the appeal.
    (6) There is no need to establish a Privacy case file if the 
individual has not cited the Privacy Act (reference (b)), this part, or 
the Component implementing instruction for this part.
    (7) Privacy case files shall not be furnished or disclosed to anyone 
for use in making any determination about the individual other than 
determinations made under this part.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.33  Reproduction fees.

    (a) Assessing fees. (1) Charge the individual only the direct cost 
of reproduction.
    (2) Do not charge reproduction fees if copying is:
    (i) The only means to make the record available to the individual 
(for example, a copy of the record must be made to delete classified 
information); or
    (ii) For the convenience of the DoD Component (for example, the 
Component has no reading room where an individual may review the record, 
or reproduction is done to keep the original in the Component's file).
    (3) No fees shall be charged when the record may be obtained without 
charge under any other regulation, directive, or statute.
    (4) Do not use fees to discourage requests.
    (b) No minimum fees authorized. Use fees only to recoup direct 
reproduction costs associated with granting access. Minimum fees for 
duplication are not authorized and there is no automatic charge for 
processing a request.
    (c) Prohibited fees. Do not charge or collect fees for:
    (1) Search and retrieval of records;
    (2) Review of records to determine releasability;

[[Page 841]]

    (3) Copying records for DoD Component convenience or when the 
individual has not specifically requested a copy;
    (4) Transportation of records and personnel; or
    (5) Normal postage.
    (d) Waiver of fees. (1) Normally, fees are waived automatically if 
the direct costs of a given request is less than $30. This fee waiver 
provision does not apply when a waiver has been granted to the 
individual before, and later requests appear to be an extension or 
duplication of that original request. A DoD Component may, however, set 
aside this automatic fee waiver provision when on the basis of good 
evidence it determines that the waiver of fees is not in the public 
interest.
    (2) Decisions to waiver or reduce fees that exceed the automatic 
waiver threshold shall be made on a case-by-case basis.
    (e) Fees for members of Congress. Do not charge members of Congress 
for copying records furnished even when the records are requested under 
the Privacy Act on behalf of a constituent (see Sec. 310.41(k) of 
subpart E). When replying to a constituent inquiry and the fees involved 
are substantial, consider suggesting to the Congressman that the 
constituent can obtain the information directly by writing to the 
appropriate offices and paying the costs. When practical, suggest to the 
Congressman that the record can be examined at no cost if the 
constituent wishes to visit the custodian of the record.
    (f) Reproduction fees computation. Compute fees using the 
appropriate portions of the fee schedule in subpart G of the DoD Freedom 
of Information Program (32 CFR part 286).

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Subpart E_Disclosure of Personal Information to Other Agencies and Third 
                                 Parties



Sec. 310.40  Conditions of disclosure.

    (a) Disclosures to third parties. (1) The Privacy Act only compels 
disclosure of records from a system of records to the individuals to 
whom they pertain.
    (2) All requests by individual for personal information about other 
individuals (third parties) shall be processed under the DoD Freedom of 
Information Program (32 CFR part 286), except for requests by the 
parents of a minor, or legal guardians of an individual, for access to 
the records pertaining to the minor or individual.
    (b) Disclosures among DoD Components. For the purposes of disclosure 
and disclosure accounting, the Department of Defense is considered a 
single agency (see Sec. 310.41(a)).
    (c) Disclosures outside the Department of Defense. Do not disclose 
personal information from a system of records outside the Department of 
Defense unless:
    (1) The record has been requested by the individual to whom it 
pertains.
    (2) The written consent of the individual to whom the record 
pertains has been obtained for release of the record to the requesting 
agency, activity, or individual, or
    (3) The release is for one of the specific nonconsensual purposes 
set forth in Sec. 310.41 of this part.
    (d) Validation before disclosure. Except for releases made in 
accordance with the Freedom of Information Act (5 U.S.C. 552), before 
disclosing any personal information to any recipient outside the 
Department of Defense other than a federal agency or the individual to 
whom it pertains:
    (1) Ensure that the records are accurate, timely, complete, and 
relevant for agency purposes;
    (2) Contact the individual, if reasonably available, to verify the 
accuracy, timeliness, completeness, and relevancy of the information, if 
the cannot be determined from the record; or
    (3) If the information is not current and the individual is not 
reasonably available, advise the recipient that the information is 
believed accurate as of a specific date and any other known factors 
bearing on its accuracy and relevancy.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.41  Nonconsensual disclosures.

    (a) Disclosures within the Department of Defense. (1) Records 
pertaining to an

[[Page 842]]

individual may be disclosed without the consent of the individual to any 
DoD official who has need for the record in the performance of his or 
her assigned duties.
    (2) Rank, position, or title alone do not authorize access to 
personal information about others. An official need for the information 
must exist before disclosure.
    (b) Disclosures under the Freedom of Information Act. (1) All 
records must be disclosed if their release is required by the Freedom of 
Information Act (5 U.S.C 552) see also the DoD Freedom of Information 
Program (32 CFR part 286). The Freedom of Information Act requires that 
records be made available to the public unless exempted from disclosure 
by one of the nine exemptions found in the Act. It follows, therefore, 
that if a record is not exempt from disclosure it must be disclosed.
    (2) The standard for exempting most personal records, such as 
personnel records, medical records, and similar records, is found in 
Exemption Number 6 of 32 CFR 286.31. Under that exemption, release of 
personal information can only be denied when its release would be a 
``clearly unwarranted invasion of personal privacy.''
    (3) Release of personal information in investigatory records 
including personnel security investigation records is controlled by the 
broader standard of an ``unwarranted invasion of personal privacy'' 
found in Exemption Number 7 of 32 CFR 286.31. This broader standard 
applies only to investigatory records.
    (4) See 32 CFR part 286 for the standards to use in applying these 
exemptions.
    (c) Personal information that is normally releasable--(1) DoD 
civilian employees. (i) Some examples of personal information regarding 
DoD civilian employees that normally may be released without a clearly 
unwarranted invasion of personal privacy include:
    (A) Name.
    (B) Present and past postion titles.
    (C) Present and past grades.
    (D) Present and past salaries.
    (E) Present and past duty stations.
    (F) Office or duty telephone numbers.
    (ii) All disclosures of personal information regarding federal 
civilian employees shall be made in accordance with the Federal 
Personnel Manual (FPM) 5 CFR parts 293, 294, 297 and 735.
    (2) Military members. (i) While it is not possible to identify 
categorically information that must be released or withheld from 
military personnel records in every instance, the following items of 
personal information regarding military members normally may be 
disclosed without a clearly unwarranted invasion of their personal 
privacy:
    (A) Full name.
    (B) Rank.
    (C) Date of rank.
    (D) Gross salary.
    (E) Past duty assignments.
    (F) Present duty assignment.
    (G) Future assignments that are officially established.
    (H) Office of duty telephone numbers.
    (I) Source of commission.
    (J) Promotion sequence number.
    (K) Awards and decorations.
    (L) Attendance at professional military schools.
    (M) Duty status at any given time.
    (ii) All releases of personal information regarding military members 
shall be made in accordance with the standards established by 32 CFR 
part 286.
    (3) Civilian employees not under the FPM. (i) While it is not 
possible to identify categorically those items of personal information 
that must be released regarding civilian employees not subject to the 
Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735), such as 
nonappropriated fund employees, normally the following items may be 
released without a clearly unwarranted invasion of personal privacy:
    (A) Full name.
    (B) Grade or position.
    (C) Date of grade.
    (D) Gross salary.
    (E) Present and past assignments.
    (F) Future assignments, if officially established.
    (G) Office or duty telephone numbers.
    (ii) All releases of personal information regarding civilian 
personnel in this category shall be made in accordance with the 
standards established by 32 CFR part 286, the DoD Freedom of Information 
Program.
    (d) Release of home addresses and home telephone numbers. (1) The 
release of home addresses and home telephone numbers normally is 
considered a

[[Page 843]]

clearly unwarranted invasion of personal privacy and is prohibited. 
However, these may be released without prior specific consent of the 
individual if:
    (i) The individual has indicated previously that he or she 
interposes no objection to their release (see paragraphs (d) (3) and (4) 
of this section);
    (ii) The source of the information to be released is a public 
document such as commercial telephone directory or other public listing;
    (iii) The release is required by federal statute (for example, 
pursuant to federally-funded state programs to locate parents who have 
defaulted on child support payments (42 U.S.C. 653); or
    (iv) The releasing official releases the information under the 
provisions of the DoD Freedom of Information Act Program (32 CFR part 
286).
    (2) A request for a home address or telephone number may be referred 
to the last known address of the individual for a direct reply by him or 
her to the requester. In such cases the requester shall be notified of 
the referral.
    (3) When collecting lists of home addresses and telephone numbers, 
the individual may be offered the option of authorizing the information 
pertaining to him or her to be disseminated without further permission 
for specific purposes, such as locator services. In these cases, the 
information may be disseminated for the stated purpose without further 
consent. However, if the information is to be disseminated for any other 
purpose, a new consent is required. Normally such consent for release is 
in writing and signed by the individual.
    (4) Before listing home addresses and home telephone numbers in DoD 
telephone directories, give the individuals the opportunity to refuse 
such a listing. Excuse the individual from paying any additional cost 
that may be associated with maintaining an unlisted number for 
government-owned telephone services if the individual requests his or 
her number not be listed in the directory under this part.
    (5) Do not sell or rent lists of individual names and addresses 
unless such action is specifically authorized.
    (e) Disclosures for established routine uses. (1) Records may be 
disclosed outside the Department of Defense without consent of the 
individual to whom they pertain for an established routine use.
    (2) A routine use shall:
    (i) Be compatible with and related to the purpose for which the 
record was compiled;
    (ii) Identify the persons or organizations to whom the record may be 
released;
    (iii) Identify specifically the uses to which the information may be 
put by the receiving agency; and
    (iv) Have been published previously in the Federal Register (see 
Sec. 310.62(i), subpart G).
    (3) Establish a routine use for each user of the information outside 
the Department of Defense who need official access to the records.
    (4) Routine uses may be established, discontinued, or amended 
without the consent of the individuals involved. However, new or changed 
routine uses must be published in the Federal Register at least 30 days 
before actually disclosing any records under their provisions (see 
subpart G).
    (5) In addition to the routine uses established by the individual 
system notices, common blanket routine uses for all DoD-maintained 
systems of records have been established (see appendix C). These blanket 
routine uses are published only at the beginning of the listing of 
system notices for each Component in the Federal Register (see paragraph 
Sec. 310.62(a)(1), subpart G). Unless a system notice specifically 
excludes a system from a given blanket routine use, all blanket routine 
uses apply.
    (6) If the recipient has not been identified in the Federal Register 
or a use to which the recipient intends to put the record has not been 
published in the system notice as a routine use, the written permission 
of the individual is required before release or use of the record for 
that purpose.
    (f) Disclosures to the Bureau of the Census. Records in DoD systems 
of records may be disclosed without the consent of the individuals to 
whom

[[Page 844]]

they pertain to the Bureau of the Census for purposes of planning or 
carrying out a census survey or related activities pursuant to the 
provisions of 13 U.S.C. 8.
    (g) Disclosures for statistical research and reporting. (1) Records 
may be disclosed for statistical research and reporting without the 
consent of the individuals to whom they pertain. Before such disclosures 
the recipient must provide advance written assurance that:
    (i) The records will be used as statistical research or reporting 
records;
    (ii) The records will only be transferred in a form that is not 
individually identifiable; and
    (iii) The records will not be used, in whole or in part, to make any 
determination about the rights, benefits, or entitlements of specific 
individuals.
    (2) A disclosure accounting (see paragraph (a) of Sec. 310.44) is 
not required when information that is not identifiable individually is 
released for statistical research or reporting.
    (h) Disclosures to the National Archives and Records Administration 
(NARA). (1) Records may be disclosed without the consent of the 
individual to whom they pertain to the NARA if they:
    (i) Have historical or other value to warrant continued 
preservation; or
    (ii) For evaluation by the NARA to determine if a record has such 
historical or other value.
    (2) Records transferred to a Federal Records Center (FRC) for 
safekeeping and storage do not fall within this category. These remain 
under the control of the transferring Component, and the FRC personnel 
are considered agents of the Component which retains control over the 
records. No disclosure accounting is required for the transfer of 
records to the FRCs.
    (i) Disclosures for law enforcement purposes. (1) Records may be 
disclosed without the consent of the individual to whom they pertain to 
another agency or an instrumentality of any governmental jurisdiction 
within or under the control of the United States for a civil or criminal 
law enforcement activity, provided:
    (i) The civil or criminal law enforcement activity is authorized by 
law;
    (ii) The head of the law enforcement activity or a designee has made 
a written request specifying the particular records desired and the law 
enforcement purpose (such as criminal investigations, enforcement of a 
civil law, or a similar purpose) for which the record is sought; and
    (iii) There is no federal statute that prohibits the disclosure of 
the records.
    (2) Normally, blanket requests for access to any and all records 
pertaining to an individual are not honored.
    (3) When a record is released to a law enforcement activity under 
paragraph (i)(1) of this section, maintain a disclosure accounting. This 
disclosure accounting shall not be made available to the individual to 
whom the record pertains if the law enforcement activity requests that 
the disclosure not be released.
    (4) The blanket routine use for Law Enforcement (appendix C, section 
A.) applies to all DoD Component systems notices (see paragraph (e)(5) 
of this section). Only by including this routine use can a Component, on 
its own initiative, report indications of violations of law found in a 
system of records to a law enforcement activity without the consent of 
the individual to whom the record pertains (see paragraph (i)(1) of this 
section when responding to requests from law enforcement activities).
    (j) Emergency disclosures. (1) Records may be disclosed without the 
consent of the individual to whom they pertain if disclosure is made 
under compelling circumstances affecting the health or safety of any 
individual. The affected individual need not be the subject of the 
record disclosed.
    (2) When such a disclosure is made, notify the individual who is the 
subject of the record. Notification sent to the last known address of 
the individual as reflected in the records is sufficient.
    (3) The specific data to be disclosed is at the discretion of 
releasing authority.
    (4) Emergency medical information may be released by telephone.
    (k) Disclosures to Congress and the General Accounting Office. (1) 
Records may be disclosed without the consent of the individual to whom 
they pertain to either House of the Congress or to

[[Page 845]]

any committee, joint committee or subcommittee of Congress if the 
release pertains to a matter within the jurisdiction of the committee. 
Records may also be disclosed to the General Accounting Office (GAO) in 
the course of the activities of GAO.
    (2) The blanket routine use for ``Congressional Inquiries'' (see 
appendix C, section D.) applies to all systems; therefore, there is no 
need to verify that the individual has authorized the release of his or 
her record to a congressional member when responding to a congressional 
constituent inquiry.
    (3) If necessary, accept constituent letters requesting a member of 
Congress to investigate a matter pertaining to the individual as written 
authorization to provide access to the records to the congressional 
member or his or her staff.
    (4) The verbal statement by a congressional staff member is 
acceptable to establish that a request has been received from the person 
to whom the records pertain.
    (5) If the constituent inquiry is being made on behalf of someone 
other than the individual to whom the record pertains, provide the 
congressional member only that information releasable under the Freedom 
of Information Act (5 U.S.C. 552). Advise the congressional member that 
the written consent of the individual to whom the record pertains is 
required before any additional information may be released. Do not 
contact individuals to obtain their consents for release to 
congressional members unless a congressional office specifically 
requests that this be done.
    (6) Nothing in paragraph (k)(2) of this section prohibits a 
Component, when appropriate, from providing the record directly to the 
individual and notifying the congressional office that this has been 
done without providing the record to the congressional member.
    (7) See paragraph (e) of Sec. 310.33 for the policy on assessing 
fees for Members of Congress.
    (8) Make a disclosure accounting each time a record is disclosed to 
either House of Congress, to any committee, joint committee, or 
subcommittee of Congress, to any congressional member, or GAO.
    (l) Disclosures under court orders. (1) Records may be disclosed 
without the consent of the person to whom they pertain under a court 
order signed by a judge of a court of competent jurisdiction. Releases 
may also be made under the compulsory legal process of federal or state 
bodies having authority to issue such process.
    (2) When a record is disclosed under this provision, make reasonable 
efforts to notify the individual to whom the record pertains, if the 
legal process is a matter of public record.
    (3) If the process is not a matter of public record at the time it 
is issued, seek to be advised when the process is made public and make 
reasonable efforts to notify the individual at that time.
    (4) Notification sent to the last known address of the individual as 
reflected in the records is considered reasonable effort to notify.
    (5) Make a disclosure accounting each time a record is disclosed 
under a court order or compulsory legal process.
    (m) Disclosures to consumer reporting agencies. (1) Certain personal 
information may be disclosed to consumer reporting agencies as defined 
by the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 
952(d)).
    (2) Under the provisions of paragraph (m)(1) of this section, the 
following information may be disclosed to a consumer reporting agency:
    (i) Name, address, taxpayer identification number (SSN), and other 
information necessary to establish the identity of the individual.
    (ii) The amount, status, and history of the claim.
    (iii) The agency or program under which the claim arose.
    (3) The Federal Claims Collection Act of 1966, as amended (31 U.S.C. 
952(d)) specifically requires that the system notice for the system of 
records from which the information will be disclosed indicates that the 
information may be disclosed to a ``consumer reporting agency.''

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991; 62 FR 26389, May 14, 1997]

[[Page 846]]



Sec. 310.42  Disclosures to commercial enterprises.

    (a) General policy. (1) Make releases of personal information to 
commercial enterprises under the criteria established by the DoD Freedom 
of Information Program (32 CFR part 286).
    (2) The relationship of commercial enterprises to their clients or 
customers and to the Department of Defense are not changed by this part.
    (3) The DoD policy on personal indebtedness for military personnel 
is contained in 32 CFR part 43a and for civilian employees in the Office 
of Personnel Management, Federal Personnel Manual (5 CFR part 550).
    (b) Release of personal information. (1) Any information that must 
be released under the Freedom of Information (5 U.S.C. 552) may be 
released to a commercial enterprise without the individual's consent 
(see paragraph (b) of Sec. 310.41 of this subpart).
    (2) Commercial enterprises may present a signed consent statement 
setting forth specific conditions for release of personal information. 
Statements such as the following, if signed by the individual, are 
considered valid:

    I hereby authorize the Department of Defense to verify my Social 
Security Number or other identifying information and to disclose my home 
address and telephone number to authorized representatives of (name of 
commercial enterprise) so that they may use this information in 
connection with my commercial dealings with that enterprise. All 
information furnished will be used in connection with my financial 
relationship with (name of commercial enterprise).

    (3) When a statement of consent as outlined in paragraph (b)(2) of 
this section is presented, provide the requested information if its 
release is not prohibited by some other regulation or statute.
    (4) Blanket statements of consent that do not identify specifically 
the Department of Defense or any of its Components, or that do not 
specify exactly the type of information to be released, may be honored 
if it is clear that the individual in signing the consent statement 
intended to obtain a personal benefit (for example, a loan to buy a 
house) and was aware of the type information that would be sought. Care 
should be exercised in these situations to release only the minimum 
amount of personal information essential to obtain the benefit sought.
    (5) Do not honor request from commercial enterprises for official 
evaluation of personal characteristics, such as evaluation of personal 
financial habits.



Sec. 310.43  Disclosures to the public from health care records.

    (a) Section applicability. This section applies to the release of 
information to the news media or the public concerning persons treated 
or hospitalized in DoD medical facilities and patients of nonfederal 
medical facilities for whom the cost of the care is paid by the 
Department of Defense.
    (b) General disclosure. Normally, the following may be released 
without the patient's consent.
    (1) Personal information concerning the patient. See 32 CFR part 
286, The DoD Freedom of Information Act Program and paragraph (c) of 
Sec. 310.41.
    (2) Medical condition:
    (i) Date of admission or disposition;
    (ii) The present medical assessment of the individual's condition in 
the following terms if the medical doctor has volunteered the 
information:
    (A) The individual's condition is presently (stable) (good) (fair) 
(serious) or (critical), and
    (B) Whether the patient is conscious, semiconscious, or unconscious.
    (c) Individual consent. (1) Detailed medical and other personal 
information may be released in response to inquiries from the news media 
and public if the patient has given his or her informed consent to such 
a release.
    (2) If the patient is not conscious or competent, no personal 
information except that required by the Freedom of Information Act (5 
U.S.C. 552) shall be released until there has been enough improvement in 
the patient to ensure he or she can give informed consent or a guardian 
has been appointed legally for the patient and the guardian has given 
consent on behalf of the patient.
    (3) The consent described in paragraph (c)(1) of this section 
regarding patients who are minors must be given by the parent of legal 
guardian.
    (d) Information that may be released with individual consent. (1) 
Any item of

[[Page 847]]

personal information may be released, if the patient has given his or 
her informed consent to its release.
    (2) Releasing medical information about patients shall be done with 
discretion, so as not to embarrass the patient, his or her family, or 
the Department of Defense, needlessly.
    (e) Disclosures to other government agencies. This subpart does not 
limit the disclosures of personal medical information to other 
government agencies for use in determining eligibility for special 
assistance or other benefits.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.44  Disclosure accounting.

    (a) Disclosure accountings. (1) Keep an accurate record of all 
disclosures made from any system of records except disclosures:
    (i) To DoD personnel for use in the performance of their official 
duties; or
    (ii) Under 32 CFR part 286, The DoD Freedom of Information Program.
    (2) In all other cases a disclosure accounting is required even if 
the individual has consented to the disclosure of the information 
pertaining to him or her.
    (3) Disclosure accountings:
    (i) Permit individuals to determine to whom information has been 
disclosed;
    (ii) Enable the activity to notify past recipients of disputed or 
corrected information (Sec. 310.32(i)(1), subpart D); and
    (iii) Provide a method of determining compliance with paragraph (c) 
of Sec. 310.40.
    (b) Contents of disclosure accountings. As a minimum, disclosure 
accounting shall contain:
    (1) The date of the disclosure.
    (2) A description of the information released.
    (3) The purpose of the disclosure.
    (4) The name and address of the person or agency to whom the 
disclosure was made.
    (c) Methods of disclosure accounting. Use any system of disclosure 
accounting that will provide readily the necessary disclosure 
information (see paragraph (a)(3) of this section).
    (d) Accounting for mass disclosures. When numerous similar records 
are released (such as transmittal of payroll checks to a bank), identify 
the category of records disclosed and include the data required by 
paragraph (b) of this section in some form that can be used to construct 
an accounting disclosure record for individual records if required (see 
paragraph (a)(3) of this section).
    (e) Disposition of disclosure accounting records. Retain disclosure 
accounting records for 5 years after the disclosure or the life of the 
record, whichever is longer.
    (f) Furnishing disclosure accountings to the individual. (1) Make 
available to the individual to whom the record pertains all disclosure 
accountings except when:
    (i) The disclosure has been made to a law enforcement activity under 
paragraph (i) of Sec. 310.41 and the law enforcement activity has 
requested that disclosure not be made; or
    (ii) The system of records has been exempted from the requirement to 
furnish the disclosure accounting under the provisions of Sec. 
310.50(b), subpart F.
    (2) If disclosure accountings are not maintained with the record and 
the individual requests access to the accounting, prepare a listing of 
all disclosures (see paragraph (b) of this section) and provide this to 
the individual upon request.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



                          Subpart F_Exemptions



Sec. 310.50  Use and establishment of exemptions.

    (a) Types of exemptions. (1) There are two types of exemptions 
permitted by the Privacy Act.
    (i) General exemptions that authorize the exemption of a system of 
records from all but certain specifically identified provisions of the 
Act.
    (ii) Specific exemptions that allow a system of records to be 
exempted only from certain designated provisions of the Act.
    (2) Nothing in the Act permits exemption of any system of records 
from all provisions of the Act (see appendix D).

[[Page 848]]

    (b) Establishing exemptions. (1) Neither general nor specific 
exemptions are established automatically for any system of records. The 
head of the DoD Component maintaining the system of records must make a 
determination whether the system is one for which an exemption properly 
may be claimed and then propose and establish an exemption rule for the 
system. No system of records within the Department of Defense shall be 
considered exempted until the head of the Component has approved the 
exemption and an exemption rule has been published as a final rule in 
the Federal Register (see Sec. 310.60(e), subpart G).
    (2) Only the head of the DoD Component or an authorized designee may 
claim an exemption for a system of records.
    (3) A system of records is considered exempt only from those 
provisions of the Privacy Act (5 U.S.C. 552a) which are identified 
specifically in the Component exemption rule for the system and which 
are authorized by the Privacy Act.
    (4) To establish an exemption rule, see Sec. 310.61 of subpart G.
    (c) Blanket exemption for classified material. (1) Include in the 
Component rules a blanket exemption under 5 U.S.C. 552a(k)(1) of the 
Privacy Act from the access provisions (5 U.S.C. 552a(d)) and the 
notification of access procedures (5 U.S.C. 522a(e)(4)(H)) of the Act 
for all classified material in any system of records maintained.
    (2) Do not claim specifically an exemption under section 552a(k)(1) 
of the Privacy Act for any system of records. The blanket exemption 
affords protection to all classified material in all systems of records 
maintained.
    (d) Provisions from which exemptions may be claimed. (1) The head of 
a DoD Component may claim an exemption from any provision of the Act 
from which an exemption is allowed (see appendix D).
    (2) Notify the Defense Privacy Office ODASD(A) before claiming an 
exemption for any system of records from the following:
    (i) The exemption rule publication requirement (5 U.S.C. 552a(j)) of 
the Privacy Act.
    (ii) The requirement to report new systems of records (5 U.S.C. 
552a(o)); or
    (iii) The annual report requirement (5 U.S.C. 552a(p)).
    (e) Use of exemptions. (1) Use exemptions only for the specific 
purposes set forth in the exemption rules (see paragraph (b) of Sec. 
310.61, subpart G).
    (2) Use exemptions only when they are in the best interest of the 
government and limit them to the specific portions of the records 
requiring protection.
    (3) Do not use an exemption to deny an individual access to any 
record to which he or she would have access under the Freedom of 
Information Act (5 U.S.C. 552).
    (f) Exempt records in nonexempt systems. (1) Exempt records 
temporarily in the hands of another Component are considered the 
property of the originating Component and access to these records is 
controlled by the system notices and rules of the originating Component.
    (2) Records that are actually incorporated into a system of records 
may be exempted only to the extent the system of records into which they 
are incorporated has been granted an exemption, regardless of their 
original status or the system of records for which they were created.
    (3) If a record is accidentally misfiled into a system of records, 
the system notice and rules for the system in which it should actually 
be filed will govern.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.51  General exemptions.

    (a) Use of the general exemptions. (1) No DoD Component is 
authorized to claim the exemption for records maintained by the Central 
Intelligence Agency established by 5 U.S.C. 552a(j)(1) of the Privacy 
Act.
    (2) The general exemption established by 5 U.S.C. 552a(j)(2) of the 
Privacy Act may be claimed to protect investigative records created and 
maintained by law-enforcement activities of a DoD Component.
    (3) To qualify for the (j)(2) exemption, the system of records must 
be

[[Page 849]]

maintained by an element that performs as its principal function 
enforcement of the criminal law, such as U.S. Army Criminal 
Investigation Command (CIDC), Naval Investigative Service (NIS), the Air 
Force Office of Special Investigations (AFOSI), and military police 
activities. Law enforcement includes police efforts to detect, prevent, 
control, or reduce crime, to apprehend or identify criminals; and the 
activities of correction, probation, pardon, or parole authorities.
    (4) Information that may be protected under the (j)(2) exemption 
include:
    (i) Records compiled for the purpose of identifying criminal 
offenders and alleged offenders consisting only of identifying data and 
notations of arrests, the nature and disposition of criminal charges, 
sentencing, confinement, release, parole, and probation status (so-
called criminal history records);
    (ii) Reports and other records compiled during criminal 
investigations, to include supporting documentation.
    (iii) Other records compiled at any stage of the criminal law 
enforcement process from arrest or indictment through the final release 
from parole supervision, such as presentence and parole reports.
    (5) The (j)(2) exemption does not apply to:
    (i) Investigative records prepared or maintained by activities 
without primary law-enforcement missions. It may not be claimed by any 
activity that does not have law enforcement as its principal function.
    (ii) Investigative records compiled by any activity concerning 
employee suitability, eligibility, qualification, or for individual 
access to classified material regardless of the principal mission of the 
compiling DoD Component.
    (6) The (j)(2) exemption claimed by the law-enforcement activity 
will not protect investigative records that are incorporated into the 
record system of a nonlaw enforcement activity or into nonexempt systems 
of records (see paragraph (f)(2) of Sec. 310.50). Therefore, all system 
managers are cautioned to comply with the various regulations 
prohibiting or limiting the incorporation of investigatory records into 
system of records other than those maintained by law-enforcement 
activities.
    (b) Access to records for which a (j)(2) exemption is claimed. 
Access to investigative records in the hands of a law-enforcement 
activity or temporarily in the hands of a military commander or other 
criminal adjudicative activity shall be processed under 32 CFR part 286, 
The DoD Freedom of Information Act Program, provided that the system of 
records from which the file originated is a law enforcement record 
system that has been exempted from the access provisions of this part 
(see paragraph (h) of Sec. 310.30, subpart D).

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.52  Specific exemptions.

    (a) Use of the specific exemptions. The specific exemptions permit 
certain categories of records to be exempted from certain specific 
provisions of the Privacy Act (see appendix D). To establish a specific 
exemption, the records must meet the following criteria (parenthetical 
references are to the appropriate subsection of the Privacy Act (5 
U.S.C. 552a(k)):
    (1) The (k)(1). Information specifically authorized to be classified 
under the DoD Information Security Program Regulation, 32 CFR part 159. 
(see also paragraph (c) of this section).
    (2) The (k)(2). Investigatory information compiled for law-
enforcement purposes by nonlaw enforcement activities and which is not 
within the scope of Sec. 310.51(a). If an individual is denied any 
right, privilege or benefit that he or she is otherwise entitled by 
federal law or for which he or she would otherwise be eligible as a 
result of the maintenance of the information, the individual will be 
provided access to the information except to the extent that disclosure 
would reveal the identity of a confidential source. This subsection when 
claimed allows limited protection of investigative reports maintained in 
a system of records used in personnel or administrative actions.
    (3) The (k)(3). Records maintained in connection with providing 
protective services to the President and other individuals under 18 
U.S.C. 3506.

[[Page 850]]

    (4) The (k)(4). Records maintained solely for statistical research 
or program evaluation purposes and which are not used to make decisions 
on the rights, benefits, or entitlement of an individual except for 
census records which may be disclosed under 13 U.S.C. 8.
    (5) The (k)(5). Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information, but only to the extent such material 
would reveal the identity of a confidential source. This provision 
allows protection of confidential sources used in background 
investigations, employment inquiries, and similar inquiries that are for 
personnel screening to determine suitability, eligibility, or 
qualifications.
    (6) The (k)(6). Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
federal or military service, if the disclosure would compromise the 
objectivity or fairness of the test or examination process.
    (7) The (k)(7). Evaluation material used to determine potential for 
promotion in the Military Services, but only to the extent that the 
disclosure of such material would reveal the identity of a confidential 
source.
    (b) Promises of confidentiality. (1) Only the identity of sources 
that have been given an express promise of confidentiality may be 
protected from disclosure under paragraphs (a)(2), (5) and (7) of this 
section. However, the identity of sources who were given implied 
promises of confidentiality in inquiries conducted before September 27, 
1975, may also be protected from disclosure.
    (2) Ensure that promises of confidentiality are used on a limited 
basis in day-to-day operations. Establish appropriate procedures and 
identify fully those categories of individuals who may make such 
promises. Promises of confidentiality shall be made only when they are 
essential to obtain the information sought.
    (c) Access to records for which specific exemptions are claimed. 
Deny the individual access only to those portions of the records for 
which the claimed exemption applies.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



                   Subpart G_Publication Requirements



Sec. 310.60  Federal Register publication.

    (a) What must be published in the Federal Register. (1) Three types 
of documents relating to the Privacy Program must be published in the 
Federal Register:
    (i) DoD Component Privacy Program rules;
    (ii) Component exemption rules; and
    (iii) System notices.
    (2) See DoD 5025.1-M, ``Directives Systems Procedures,'' and DoD 
Directive 5400.9, (32 CFR part 296) ``Publication of Proposed and 
Adopted Regulations Affecting the Public'' for information pertaining to 
the preparation of documents for publication in the Federal Register.
    (b) The effect of publication in the Federal Register. Publication 
of a document in the Federal Register constitutes official public notice 
of the existence and content of the document.
    (c) DoD Component rules. (1) Component Privacy Program procedures 
and Component exemption rules are subject to the rulemaking procedures 
prescribed in 32 CFR part 296.
    (2) System notices are not subject to formal rulemaking and are 
published in the Federal Register as ``Notices,'' not rules.
    (3) Privacy procedural and exemption rules are incorporated 
automatically into the Code of Federal Regulations (CFR). System notices 
are not published in the CFR.
    (d) Submission of rules for publication. (1) Submit to the Defense 
Privacy Office, ODASD(A), all proposed rules implementing this part in 
proper format (see Appendices E, F and G) for publication in the Federal 
Register.
    (2) This part has been published as a final rule in the Federal 
Register (32 CFR part 310). Therefore, incorporate it into your 
Component rules by reference rather than by republication.

[[Page 851]]

    (3) DoD Component rules that simply implement this part need only be 
published as final rules in the Federal Register (see DoD 5025.1-M, 
``Directives System Procedures,'' and DoD Directive 5400.9, 
``Publication of Proposed and Adopted Regulations Affecting the 
Public,'' (32 CFR part 296).
    (4) Amendments to Component rules are submitted like the basic 
rules.
    (5) The Defense Privacy Office ODASD(A) submits the rules and 
amendments thereto to the Federal Register for publication.
    (e) Submission of exemption rules for publication. (1) No system of 
records within the Department of Defense shall be considered exempt from 
any provision of this part until the exemption and the exemption rule 
for the system has been published as a final rule in the Federal 
Register (see paragraph (c) of this section).
    (2) Submit exemption rules in proper format to the Defense Privacy 
Office ODASD(A). After review, the Defense Privacy Office will submit 
the rules to the Federal Register for publication.
    (3) Exemption rules require publication both as proposed rules and 
final rules (see DoD Directive 5400.9, 32 CFR part 296).
    (4) Section 310.61 of this subpart discusses the content of an 
exemption rule.
    (5) Submit amendments to exemption rules in the same manner used for 
establishing these rules.
    (f) Submission of system notices for publication. (1) While system 
notices are not subject to formal rulemaking procedures, advance public 
notice must be given before a Component may begin to collect personal 
information or use a new system of records. The notice procedures 
require that:
    (i) The system notice describes the contents of the record system 
and the routine uses for which the information in the system may be 
released.
    (ii) The public be given 30 days to comment on any proposed routine 
uses before implementation; and
    (iii) The notice contain the data on which the system will become 
effective.
    (2) Submit system notices to the Defense Privacy Office in the 
Federal Register format (see appendix E). The Defense Privacy Office 
transmits the notices to the Federal Register for publication.
    (3) Section 310.62 of this subpart discusses the specific elements 
required in a system notice.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.61  Exemption rules.

    (a) General procedures. Paragraph (b)(1) of Sec. 310.50, subpart F, 
provides the general guidance for establishing exemptions for systems of 
records.
    (b) Contents of exemption rules. (1) Each exemption rule submitted 
for publication must contain the following:
    (i) The record system identification and title of the system for 
which the exemption is claimed (see Sec. 310.62 of this subpart);
    (ii) The specific subsection of the Privacy Act under which 
exemptions for the system are claimed (for example, 5 U.S.C. 552a(j)(2), 
5 U.S.C. 552a(k)(3); or 5 U.S.C. 552a(k)(7);
    (iii) The specific provisions and subsections of the Privacy Act 
from which the system is to be exempted (for example, 5 U.S.C. 
552a(c)(3), or 5 U.S.C. 552a(d)(1)-(5)) (see appendix D); and
    (iv) The specific reasons why an exemption is being claimed from 
each subsection of the Act identified.
    (2) Do not claim an exemption for classified material for individual 
systems of records, since the blanket exemption applies (see paragraph 
(c) of Sec. 310.50 of subpart F).

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.62  System notices.

    (a) Contents of the system notices. (1) The following data captions 
are included in each system notice:
    (i) System identification (see paragraph (b) of this section).
    (ii) System name (see paragraph (c) of this section).
    (iii) System location (see paragraph (d) of this section).
    (iv) Categories of individuals covered by the system (see paragraph 
(e) of this section).

[[Page 852]]

    (v) Categories of records in the system (see paragraph (f) of this 
section).
    (vi) Authority for maintenance of the system (see paragraph (g) of 
this section).
    (vii) Purpose(s) (see paragraph (h) of this section).
    (viii) Routine uses of records maintained in the system, including 
categories of users, uses, and purposes of such uses (see paragraph (i) 
of this section).
    (ix) Policies and practices for storing, retrieving, accessing, 
retaining, and disposing of records in the system (see paragraph (j) of 
this section).
    (x) Systems manager(s) and address (see paragraph (k) of this 
section).
    (xi) Notification procedure (see paragraph (l) of this section).
    (xii) Record access procedures (see paragraph (m) of this section).
    (xiii) Contesting records procedures (see paragraph (n) of this 
section.)
    (xiv) Record source categories (see paragraph (o) of this section).
    (xv) Systems exempted from certain provision of the Act (see 
paragraph (p) of this section).
    (2) The captions listed in paragraph (a)(1) of this section have 
been mandated by the Office of Federal Register and must be used exactly 
as presented.
    (3) A sample system notice is shown in appendix E.
    (b) System identification. The system identifier must appear on all 
system notices and is limited to 21 positions, including Component code, 
file number and symbols, punctuation, and spacing.
    (c) System name. (1) The name of the system should reasonably 
identify the general purpose of the system and, if possible, the general 
categories of individuals involved.
    (2) Use acronyms only parenthetically following the title or any 
portion thereof, such as, ``Joint Uniform Military Pay System (JUMPS).'' 
Do not use acronyms that are not commonly known unless they are preceded 
by an explanation.
    (3) The system name may not exceed 55 character positions including 
punctuation and spacing.
    (d) System location. (1) For systems maintained in a single location 
provide the exact office name, organizational identity, and address or 
routing symbol.
    (2) For geographically or organizationally decentralized systems, 
specify each level of organization or element that maintains a segment 
of the system.
    (3) For automated data systems with a central computer facility and 
input/output terminals at several geographically separated locations, 
list each location by category.
    (4) When multiple locations are identified by type of organization, 
the system location may indicate that official mailing addresses are 
contained in an address directory published as an appendix to the 
Component system notices in the Federal Register. Information concerning 
format requirements for preparation of an address directory may be 
obtained from the project officer, Air Force 1st Information Systems 
Group (AF/1ISG/GNR), Washington, DC 20330-6345.
    (5) If no address directory is used or the addresses in the 
directory are incomplete, the address of each location where a segment 
of the record system is maintained must appear under the ``System 
Location'' caption.
    (6) Classified addresses are not listed, but the fact that they are 
classified is indicated.
    (7) Use the standard U.S. Postal Service two letter state 
abbreviation symbols and zip codes for all domestic addresses.
    (e) Categories of individuals covered by the system. (1) Set forth 
the specific categories of individuals to whom records in the system 
pertain in clear, easily understood, nontechnical terms.
    (2) Avoid the use of broad over-general descriptions, such as ``all 
Army personnel'' or ``all military personnel'' unless this actually 
reflects the category of individuals involved.
    (f) Categories of records in the system. (1) Describe in clear, 
nontechnical terms the types of records maintained in the system.
    (2) Only documents actually retained in the system of records shall 
be described, not source documents that are used only to collect data 
and then destroyed.
    (g) Authority for maintenance of the system. (1) Cite the specific 
provision of

[[Page 853]]

the federal statute or Executive Order that authorizes the maintenance 
of the system.
    (2) Include with citations for statutes the popular names, when 
appropriate (for example, Title 51, U.S. Code, section 2103, ``Tea-
Tasters Licensing Act''), and for Executive Orders, the official title 
(for example, Executive Order No. 9397, ``Numbering System for Federal 
Accounts Relating to Individual Persons'').
    (3) Cite the statute or Executive Order establishing the Component 
for administrative housekeeping records.
    (4) If the Component is chartered by a DoD Directive, cite that 
Directive as well as the Secretary of Defense authority to issue the 
Directive. For example, ``Pursuant to the authority contained in the 
National Security Act of 1947, as amended (10 U.S.C. 133d), the 
Secretary of Defense has issued DoD Directive 5105.21, the charter of 
the Defense Intelligence Agency (DIA) as a separate Agency of the 
Department of Defense under his control. Therein, the Director, DIA, is 
charged with the responsibility of maintaining all necessary and 
appropriate records.''
    (h) Purpose or purposes. (1) List the specific purposes for 
maintaining the system of records by the Component.
    (2) Include the uses made of the information within the Component 
and the Department of Defense (so-called ``internal routine uses'').
    (i) Routine uses. (1) The blanket routine uses (appendix C) that 
appear at the beginning of each Component compilation apply to all 
systems notices unless the individual system notice specifically states 
that one or more of them do not apply to the system. List the blanket 
routine uses at the beginning of the Component listing of system notices 
(see paragraph (e)(5) of Sec. 310.41 of subpart E).
    (2) For all other routine uses, when practical, list the specific 
activity to which the record may be released, to include any routine 
automated system interface (for example, ``to the Department of Justice, 
Civil Rights Compliance Division,'' ``to the Veterans Administration, 
Office of Disability Benefits,'' or ``to state and local health 
agencies'').
    (3) For each routine user identified, include a statement as to the 
purpose or purposes for which the record is to be released to that 
activity (see Sec. 310.41(e) of subpart E). The routine uses should be 
compatible with the purpose for which the record was collected or 
obtained (see Sec. 310.3(p), subpart A).
    (4) Do not use general statements, such as, ``to other federal 
agencies as required'' or ``to any other appropriate federal agency.''
    (j) Policies and practices for storing, retiring, accessing, 
retaining, and disposing of records. This caption is subdivided into 
four parts:
    (1) Storage. Indicate the medium in which the records are 
maintained. (For example, a system may be ``automated'', maintained on 
magnetic tapes or disks, ``manual'', maintained in paper files, or 
``hybrid'', maintained in a combination of paper and automated form.) 
Storage does not refer to the container or facility in which the records 
are kept.
    (2) Retrievability. Specify how the records are retrieved (for 
example, name and SSN, name, SSN) and indicate whether a manual or 
computerized index is required to retrieve individual records.
    (3) Safeguards. List the categories of Component personnel having 
immediate access and those responsible for safeguarding the records from 
unauthorized access. Generally identify the system safeguards (such as 
storage in safes, vaults, locked cabinets or rooms, use of guards, 
visitor registers, personnel screening, or computer ``fail-safe'' 
systems software). Do not describe safeguards in such detail so as to 
compromise system security.
    (4) Retention and disposal. Indicate how long the record is 
retained. When appropriate, also state the length of time the records 
are maintained by the Component, when they are transferred to a Federal 
Records Center, length of retention at the Record Center and when they 
are transferred to the National Archivist or are destroyed. A reference 
to a Component regulation without further detailed information is 
insufficient.
    (k) System manager(s) and address. (1) List the title and address of 
the official

[[Page 854]]

responsible for the management of the system.
    (2) If the title of the specific official is unknown, such as for a 
local system, specify the local commander or office head as the systems 
manager.
    (3) For geographically separated or organizationally decentralized 
activities for which individuals may deal directly with officials at 
each location in exercising their rights, list the position or duty 
title of each category of officials responsible for the system or a 
segment thereof.
    (4) Do not include business or duty addresses if they are listed in 
the Component address directory.
    (l) Notification procedures. (1) If the record system has been 
exempted from subsection (e)(4)(G) of the Privacy Act (5 U.S.C. 552a) 
(see Sec. 310.50)(d), so indicate.
    (2) For all nonexempt systems, describe how an individual may 
determine if there are records pertaining to him or her in the system. 
The procedural rules may be cited, but include a brief procedural 
description of the needed data. Provide sufficient information in the 
notice to allow an individual to exercise his or her rights without 
referral to the formal rules.
    (3) As a minimum, the caption shall include:
    (i) The official title (normally the system manager) and official 
address to which the request is to be directed;
    (ii) The specific information required to determine if there is a 
record of the individual in the system.
    (iii) Identification of the offices through which the individual may 
obtain access; and
    (iv) A description of any proof of identity required (see Sec. 
310.30(c)(1)).
    (4) When appropriate, the individual may be referred to a Component 
official who shall provide this data to him or her.
    (m) Record access procedures. (1) If the record system has been 
exempted from subsection (e)(4)(H) of the Privacy Act (5 U.S.C. 552a) 
(see Sec. 310.50(d)), so indicate.
    (2) For all nonexempt records systems, describe the procedures under 
which individuals may obtain access to the records pertaining to them in 
the system.
    (3) When appropriate, the individual may be referred to the system 
manager or Component official to obtain access procedures.
    (4) Do not repeat the addresses listed in the Component address 
directory but refer the individual to that directory.
    (n) Contesting record procedures. (1) If the record system has been 
exempted from subsection (e)(4)(H) of the Privacy Act (5 U.S.C. 552a) 
(see Sec. 310.50(d)), so indicate.
    (2) For all nonexempt systems of records, state briefly how an 
individual may contest the content of a record pertaining to him or her 
in the system.
    (3) The detailed procedures for contesting record accuracy, refusal 
of access or amendment, or initial review and appeal need not be 
included if they are readily available elsewhere and can be referred to 
by the public. (For example, ``The Defense Mapping Agency rules for 
contesting contents and for appealing initial determinations are 
contained in DMA Instruction 5400.11 (32 CFR part 295c).'')
    (4) The individual may also be referred to the system manager to 
determine these procedures.
    (o) Record source categories. (1) If the record system has been 
exempted from subsection (e)(4)(I) of the Privacy Act (5 U.S.C. 552a) 
(see Sec. 310.50(d), subpart F), so indicate.
    (2) For all nonexempt systems of records, list the sources of the 
information in the system.
    (3) Specific individuals or institutions need not be identified by 
name, particularly if these sources have been granted confidentiality 
(see Sec. 310.52(b), subpart F).
    (p) System exempted from certain provisions of the Act. (1) If no 
exemption has been claimed for the system, indicate ``None.''
    (2) If there is an exemption claimed indicate specifically under 
which subsection of the Privacy Act (5 U.S.C. 552a) it is claimed.
    (3) Cite the regulation and CFR section containing the exemption 
rule for the system. (For example, ``Parts of this record system may be 
exempt under Title 5 U.S. Code, 552a(k)(2) and (5), as applicable. See 
exemption rules

[[Page 855]]

contained in Army Regulation 340-21 (32 CFR part 505).'')
    (q) Maintaining the master DoD system notice registry. (1) The 
Defense Privacy Office, ODASD(A) maintains a master registry of all DoD 
record systems notices.
    (2) Coordinate with the Defense Privacy Office, ODASD(A) to ensure 
that all new systems are added to the master registry and all amendments 
and alterations are incorporated into the master registry.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.63  New and altered record systems.

    (a) Criteria for a new record system. (1) A new system of records is 
one for which there has been no system notice published in the Federal 
Register.
    (2) If a notice for a system of records has been canceled or deleted 
before reinstating or reusing the system, a new system notice must be 
published in the Federal Register.
    (b) Criteria for an altered record system. A system is considered 
altered whenever one of the following actions occurs or is proposed:
    (1) A significant increase or change in the number or type of 
individuals about whom records are maintained.
    (i) Only changes that alter significantly the character and purpose 
of the record system are considered alterations.
    (ii) Increases in numbers of individuals due to normal growth are 
not considered alterations unless they truly alter the character and 
purpose of the system;
    (iii) Increases that change significantly the scope of population 
covered (for example, expansion of a system of records covering a single 
command's enlisted personnel to include all of the Component's enlisted 
personnel would be considered an alteration).
    (iv) A reduction in the number of individuals covered is not an 
alteration, but only an amendment (see paragraph (a) of Sec. 310.64 of 
this subpart).
    (v) All changes that add new categories of individuals to system 
coverage require a change to the ``Categories of individuals covered by 
the system'' caption of the notice (Sec. 310.62(e)) and may require 
changes to the ``Purpose(s)'' caption (Sec. 310.62(h)).
    (2) An expansion in the types or categories of information 
maintained.
    (i) The addition of any new category of records not described under 
the ``Categories of Records in System'' caption is considered an 
alteration.
    (ii) Adding a new data element which is clearly within the scope of 
the categories of records described in the existing notice is an 
amendment (see Sec. 310.64(a) of this subpart).
    (iii) All changes under this criterion require a change to the 
``Categories of Records in System'' caption of the notice (see Sec. 
310.62(f) of this subpart).
    (3) An alteration in the manner in which the records are organized 
or the manner in which the records are indexed and retrieved.
    (i) The change must alter the nature of use or scope of the records 
involved (for example, combining records systems in a reorganization).
    (ii) Any change under this criteria requires a change in the 
``Retrievability'' caption of the system notice (see Sec. 310.62(j)(2) 
of this subpart).
    (iii) If the records are no longer retrieved by name or personal 
identifier cancel the system notice (see Sec. 310.10(a) of subpart B).
    (4) A change in the purpose for which the information in the system 
is used.
    (i) The new purpose must not be compatible with the existing 
purposes for which the system is maintained or a use that would not 
reasonably be expected to be an alteration.
    (ii) If the use is compatible and reasonably expected, there is no 
change in purpose and no alteration occurs.
    (iii) Any change under this criterion requires a change in the 
``Purpose(s)'' caption (see Sec. 310.62(h) of this subpart) and may 
require a change in the ``Authority for maintenance of the system'' 
caption (see Sec. 310.62(g) of this subpart).
    (5) Changes that alter the computer environment (such as changes to 
equipment configuration, software, or procedures) so as to create the 
potential for greater or easier access.
    (i) Increasing the number of offices with direct access is an 
alteration.
    (ii) Software releases, such as operating systems and system 
utilities that

[[Page 856]]

provide for easier access are considered alterations.
    (iii) The addition of an on-line capability to a previously batch-
oriented system is an alteration.
    (iv) The addition of peripheral devices such as tape devices, disk 
devices, card readers, printers, and similar devices to an existing ADP 
system constitute an amendment if system security is preserved (see 
paragraph (a) of Sec. 310.64 of this subpart).
    (v) Changes to existing equipment configuration with on-line 
capability need not be considered alterations to the system if:
    (A) The change does not alter the present security posture; or
    (B) The addition of terminals does not extend the capacity of the 
current operating system and existing security is preserved;
    (vi) The connecting of two or more formerly independent automated 
systems or networks together creating a potential for greater access is 
an alteration.
    (vii) Any change under this caption requires a change to the 
``Storage'' caption element of the systems notice (see Sec. 
310.62(j)(1) of this subpart).
    (c) Reports of new and altered systems. (1) Submit a report of a new 
or altered system to the Defense Privacy Office before collecting 
information for or using a new system or altering an existing system 
(see appendix F and paragraph (d) of this section).
    (2) The Defense Privacy Office, ODASD(A) coordinates all reports of 
new and altered systems with the Office of the Assistant Secretary of 
Defense (Legislative Affairs) and the Office of the General Counsel, 
Department of Defense.
    (3) The Defense Privacy Office prepares for the DASD(A)'s approval 
and signature the transmittal letters sent to OMB and Congress (see 
paragraph (e) of this section).
    (d) Time restrictions on the operation of a new or altered system. 
(1) All time periods begin from the date the DASD(A) signs the 
transmittal letters (see paragraph (c)(3) of this section). The specific 
time limits are:
    (i) 60 days must elapse before data collection forms or formal 
instructions pertaining to the system may be issued.
    (ii) 60 days must elapse before the system may become operational; 
(that is, collecting, maintaining, using, or disseminating records from 
the system) (see also Sec. 310.60(f) of this subpart).
    (iii) 60 days must elapse before any public issuance of a Request 
for Proposal or Invitation to Bid for a new ADP or telecommunication 
system.
    Note: Requests for delegation of procurement authority may be 
submitted to the General Services Administration during the 60 days' 
waiting period, but these shall include language that the Privacy Act 
reporting criteria have been reviewed and that a system report is 
required for such procurement.
    (iv) Normally 30 days must elapse before publication in the Federal 
Register of the notice of a new or altered system (see Sec. 310.60(f) 
of this subpart) and the preamble to the Federal Register notice must 
reflect the date the transmittal letters to OMB and Congress were signed 
by DASD(A).
    (2) Do not operate a system of records until the waiting periods 
have expired (see Sec. 310.103 of subpart K).
    (e) Outside review of new and altered systems reports. If no 
objections are received within 30 days of a submission to the President 
of the Senate, Speaker of the House of Representatives, and the 
Director, OMB, of a new or altered system report it is presumed that the 
new or altered systems have been approved as submitted.
    (f) Exemptions for new systems. See Sec. 310.60(e) of this subpart 
for the procedures to follow in submitting exemption rules for a new 
system of records.
    (g) Waiver of time restrictions. (1) The OMB may authorize a federal 
agency to begin operation of a system of records before the expiration 
of time limits set forth in Sec. 310.63(d) of this subpart.
    (2) When seeking such a waiver, include in the letter of transmittal 
to the Defense Privacy Office, ODASD(A) an explanation why a delay of 60 
days in establishing the system of records would not be in the public 
interest. The transmittal must include:
    (i) How the public interest will be affected adversely if the 
established time limits are followed; and
    (ii) Why earlier notice was not provided.

[[Page 857]]

    (3) When appropriate, the Defense Privacy Office, ODASD(A) shall 
contact OMB and attempt to obtain the waiver.
    (i) If a waiver is granted, the Defense Privacy Office, ODASD(A) 
shall notify the subcommittee and submit the new or altered system 
notice along with any applicable procedural or exemption rules for 
publication in the Federal Register.
    (ii) If the waiver is disapproved, the Defense Privacy Office, 
ODASD(A) shall process the system the same as any other new or altered 
system and notify the subcommittee of the OMB decision.
    (4) Under no circumstances shall the routine uses for new or altered 
system be implemented before 30 days have elapsed after publication of 
the system notice containing the routine uses in the Federal Register. 
This period cannot be waived.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57800, Nov. 14, 1991]



Sec. 310.64  Amendment and deletion of systems notices.

    (a) Criteria for an amended system notice. (1) Certain minor changes 
to published systems notices are considered amendments and not 
alterations (see Sec. 310.63(b) of this subpart).
    (2) Amendments do not require a report of an altered system (see 
Sec. 310.63(c) of this subpart), but must be published in the Federal 
Register.
    (b) System notices for amended systems. When submitting an amendment 
for a system notice for publication in the Federal Register include:
    (1) The system identification and name (see paragraph (b) and (c) of 
Sec. 310.62 of this subpart).
    (2) A description of the nature and specific changes proposed.
    (3) The full text of the system notice is not required if the master 
registry contains a current system notice for the system (see Sec. 
310.62(q) of this subpart).
    (c) Deletion of system notices. (1) Whenever a system is 
discontinued, combined into another system, or determined no longer to 
be subject to this part, a deletion notice is required.
    (2) The notice of deletion shall include:
    (i) The system identification and name.
    (ii) The reason for the deletion.
    (3) When the system is eliminated through combination or merger, 
identify the successor system or systems in the deletion notice.
    (d) Submission of amendments and deletions for publication. (1) 
Submit amendments and deletions to the Defense Privacy Office, ODASD(A) 
for transmittal to the Federal Register for publication.
    (2) Include in the submission at least one original (not a 
reproduced copy) in proper Federal Register format (see appendix G).
    (3) Multiple deletions and amendments may be combined into a single 
submission.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]



                     Subpart H_Training Requirements



Sec. 310.70  Statutory training requirements.

    The Privacy Act of 1974, as amended (5 U.S.C. 552a), requires each 
agency to establish rules of conduct for all persons involved in the 
design, development, operation, and maintenance of any system of record 
and to train these persons with respect to these rules.



Sec. 310.71  OMB training guidelines.

    The OMB guidelines require all agencies additionally to:
    (a) Instruct their personnel in their rules of conduct and other 
rules and procedures adopted in implementing the Act, and inform their 
personnel of the penalties for noncompliance.
    (b) Incorporate training on the special requirements of the Act into 
both formal and informal (on-the-job) training programs.



Sec. 310.72  DoD training programs.

    (a) To meet these training requirements, establish three general 
levels of training for those persons who are involved in any way with 
the design, development, operation, or maintenance of any system of 
records. These are:

[[Page 858]]

    (1) Orientation. Training that provides basic understanding of this 
Regulation as it applies to the individual's job performance. This 
training shall be provided to personnel, as appropriate, and should be a 
prerequisite to all other levels of training.
    (2) Specialized training. Training that provides information as to 
the application of specific provisions of this part to specialized areas 
of job performance. Personnel of particular concern include, but are not 
limited to personnel specialists, finance officers, DoD personnel who 
may be expected to deal with the news media or the public, special 
investigators, paperwork managers, and other specialists (reports, 
forms, records, and related functions), computer systems development 
personnel, computer systems operations personnel, statisticians dealing 
with personal data and program evaluations, and anyone responsible for 
implementing or carrying out functions under this part. Specialized 
training should be provided on a periodic basis.
    (3) Management. Training designed to identify for responsible 
managers (such as, senior system managers, denial authorities, decision-
makers, and the managers of the functions described in Sec. 310.70 of 
this subpart) considerations that they shall take into account when 
making management decisions regarding the Defense Privacy Program.
    (b) Include Privacy Act training in courses of training when 
appropriate. Stress individual responsibilities and advise individuals 
of their rights and responsibilities under this part.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991; 65 FR 48170, Aug. 7, 2000]



Sec. 310.73  Training methodology and procedures.

    (a) Each DoD Component is responsible for the development of 
training procedures and methodology.
    (b) The Defense Privacy Office, ODASD(A) will assist the Components 
in developing these training programs and may develop Privacy training 
programs for use by all DoD Components.
    (c) All training programs shall be coordinated with the Defense 
Privacy Office, ODASD(A) to avoid duplication and to ensure maximum 
effectiveness.



Sec. 310.74  Funding for training.

    Each DoD Component shall fund its own Privacy training program.



                            Subpart I_Reports



Sec. 310.80  Requirements for reports.

    The Defense Privacy Office, ODASD(A) shall establish requirements 
for DoD Privacy Reports and DoD Components may be required to provide 
data.



Sec. 310.81  Suspense for submission of reports.

    The suspenses for submission of all reports shall be established by 
the Defense Privacy Office, ODASD(A).



Sec. 310.82  Reports control symbol.

    Any report established by this subpart in support of the Defense 
Privacy Program shall be assigned Report Control Symbol DD-COMP(A)1379. 
Special one-time reporting requirements shall be licensed separately in 
accordance with DoD Directive 5000.19 ``Policies for the Management and 
Control of Information Requirements'' and DoD Directive 5000.11, ``Data 
Elements and Data Codes Standardization Program.''



                          Subpart J_Inspections



Sec. 310.90  Privacy Act inspections.

    During internal inspections, Component inspectors shall be alert for 
compliance with this part and for managerial, administrative, and 
operational problems associated with the implementation of the Defense 
Privacy Program.



Sec. 310.91  Inspection reporting.

    (a) Document the findings of the inspectors in official reports that 
are furnished the responsible Component officials. These reports, when 
appropriate, shall reflect overall assets of the Component Privacy 
Program inspected, or portion thereof, identify deficiencies, 
irregularities, and significant problems. Also document remedial actions 
taken to correct problems identified.
    (b) Retain inspections reports and later follow-up reports in 
accordance with established records disposition standards. These reports 
shall be made

[[Page 859]]

available to the Privacy Program officials concerned upon request.



                Subpart K_Privacy Act Enforcement Actions



Sec. 310.100  Administrative remedies.

    Any individual who feels he or she has a legitimate complaint or 
grievance against the Department of Defense or any DoD employee 
concerning any right granted by this part shall be permitted to seek 
relief through appropriate administrative channels.



Sec. 310.101  Civil actions.

    An individual may file a civil suit against a DoD Component or its 
employees if the individual feels certain provisions of the Act have 
been violated (see 5 U.S.C. 552a(g), of the Privacy Act.



Sec. 310.102  Civil remedies.

    In addition to specific remedial actions, subsection (g) of the 
Privacy Act (5 U.S.C. 552a) provides for the payment of damages, court 
cost, and attorney fees in some cases.



Sec. 310.103  Criminal penalties.

    (a) The Act also provides for criminal penalties (see 5 U.S.C. 
552a(i). Any official or employee may be found guilty of a misdemeanor 
and fined not more than $5,000 if he or she willfully:
    (1) Discloses personal information to anyone not entitled to receive 
the information (see subpart E); or
    (2) Maintains a system of records without publishing the required 
public notice in the Federal Register (see subpart G).
    (b) A person who requests or obtains access to any record concerning 
another individual under false pretenses may be found guilty of 
misdemeanor and fined up to $5,000.



Sec. 310.104  Litigation status sheet.

    Whenever a complaint citing the Privacy Act is filed in a U.S. 
District Court against the Department of Defense, a DoD Component, or 
any DoD employee, the responsible system manager shall notify promptly 
the Defense Privacy Office, ODASD(A). The litigation status sheet at 
appendix H provides a standard format for this notification. The initial 
litigation status sheet forwarded shall, as a minimum, provide the 
information required by items 1 through 6. A revised litigation status 
sheet shall be provided at each stage of the litigation. When a court 
renders a formal opinion or judgment, copies of the judgment and opinion 
shall be provided to the Defense Privacy Office with the litigation 
status sheet reporting that judgment or opinion.



                  Subpart L_Matching Program Procedures



Sec. 310.110  OMB matching guidelines.

    The OMB has issued special guidelines to be followed in programs 
that match the personal records in the computerized data bases of two or 
more federal agencies by computer (see appendix I). These guidelines are 
intended to strike a balance between the interest of the government in 
maintaining the integrity of federal programs and the need to protect 
individual privacy expectations. They do not authorize matching programs 
as such and each matching program must be justified individually in 
accordance with the OMB guidelines.



Sec. 310.111  Requesting matching programs.

    (a) Forward all requests for matching programs to include necessary 
routine use amendments (see Sec. 310.62(i) of subpart G) and analysis 
and proposed matching program reports (see subsection E.6. of appendix 
I) to the Defense Privacy Office, ODASD(A).
    (b) The Defense Privacy Office shall review each request and 
supporting material and forward the report and system notice amendments 
to the Federal Register, OMB, and Congress, as appropriate.
    (c) Changes to existing matching programs shall be processed in the 
same manner as a new matching program report.



Sec. 310.112  Time limits for submitting matching reports.

    (a) No time limits are set by the OMB guidelines. However, in order 
to establish a new routine use for a matching

[[Page 860]]

program, the amended system notice must have been published in the 
Federal Register at least 30 days before implementation (see Sec. 
310.60(f) of subpart G).
    (b) Submit the documentation required by Sec. 310.111(a) of this 
subpart to the Defense Privacy Office at least 45 days before the 
proposed initiation date of the matching program.
    (c) The Defense Privacy Office may grant waivers to the 45 days' 
deadline for good cause shown. Requests for waivers shall be in writing 
and fully justified.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]



Sec. 310.113  Matching programs among DoD components.

    (a) For the purpose of the OMB guidelines, the Department of Defense 
and all DoD Components are considered a single agency.
    (b) Before initiating a matching program using only the records of 
two or more DoD Components, notify the Defense Privacy Office that the 
match is to occur. The Defense Privacy Office may request further 
information from the Component proposing the match.
    (c) There is no need to notify the Defense Privacy Office of 
computer matches using only the records of a single Component.



Sec. 310.114  Annual review of systems of records.

    The system manager shall review annually each system of records to 
determine if records from the system are being used in matching programs 
and whether the OMB Guidelines have been complied with.

Appendix A to Part 310--Special Considerations for Safeguarding Personal 
                       Information in ADP Systems

             (See paragraph (b) of Sec. 310.13, subpart B)

                               A. General

    1. The Automated Data Processing (ADP) environment subjects personal 
information to special hazards as to unauthorized compromise alteration, 
dissemination, and use. Therefore, special considerations must be given 
to safeguarding personal information in ADP systems.
    2. Personal information must also be protected while it is being 
processed or accessed in computer environments outside the data 
processing installation (such as, remote job entry stations, terminal 
stations, minicomputers, microprocessors, and similar activities).
    3. ADP facilities authorized to process classified material have 
adequate procedures and security for the purposes of this Regulation. 
However, all unclassified information subject to this Regulation must be 
processed following the procedures used to process and access 
information designated ``For Official Use Only'' (see ``DoD Freedom of 
Information Act Program'' (32 CFR part 286)).

              B. Risk Management and Safeguarding Standards

    1. Establish administrative, technical, and physical safeguards that 
are adequate to protect the information against unauthorized disclosure, 
access, or misuse (see Transmittal Memorandum No. 1 to OMB Circular A-
71--Security of Federal Automated Information Systems).
    2. Technical and physical safeguards alone will not protect against 
unintentional compromise due to errors, omissions, or poor procedures. 
Proper administrative controls generally provide cheaper and surer 
safeguards.
    3. Tailor safeguards to the type of system, the nature of the 
information involved, and the specific threat to be countered.

                   C. Minimum Administrative Safeguard

    The minimum safeguarding standards as set forth in paragraph (b) of 
Sec. 310.13, subpart B apply to all personal data within any ADP 
system. In addition:
    1. Consider the following when establishing ADP safeguards:
    a. The sensitivity of the data being processed, stored and accessed;
    b. The installation environment;
    c. The risk of exposure;
    d. The cost of the safeguard under consideration.
    2. Label or designate output and storage media products 
(intermediate and final) containing personal information that do not 
contain classified material in such a manner as to alert those using or 
handling the information of the need for special protection. Designating 
products ``For Official Use Only'' in accordance with subpart E of 32 
CFR part 286, ``DoD Freedom of Information Act Program,'' satisfies this 
requirement.
    3. Mark and protect all computer products containing classified data 
in accordance with the DoD Information Security Program Regulation (32 
CFR part 159) and the ADP Security Manual (DoD 5200.28-M).

[[Page 861]]

    4. Mark and protect all computer products containing ``For Official 
Use Only'' material in accordance with subpart E of 32 CFR part 286.
    5. Ensure that safeguards for protected information stored at 
secondary sites are appropriate.
    6. If there is a computer failure, restore all protected information 
being processed at the time of the failure using proper recovery 
procedures to ensure data integrity.
    7. Train all ADP personnel involved in processing information 
subject to this part in proper safeguarding procedures.

                         D. Physical Safeguards

    1. For all unclassified facilities, areas, and devices that process 
information subject to this part, establish physical safeguards that 
protect the information against reasonably identifiable threats that 
could result in unauthorized access or alteration.
    2. Develop access procedures for unclassified computer rooms, tape 
libraries, micrographic facilities, decollating shops, product 
distribution areas, or other direct support areas that process or 
contain personal information subject to this part that control 
adequately access to these areas.
    3. Safeguard on-line devices directly coupled to ADP systems that 
contain or process information from systems of records to prevent 
unauthorized disclosure use or alteration.
    4. Dispose of paper records following appropriate record destruction 
procedures.

                         E. Technical Safeguards

    1. The use of encryption devices solely for the purpose of 
protecting unclassified personal information transmitted over 
communication circuits or during processing in computer systems is 
normally discouraged. However, when a comprehensive risk assessment 
indicates that encryption is cost-effective it may be used.
    2. Remove personal data stored on magnetic storage media by methods 
that preclude reconstruction of the data.
    3. Ensure that personal information is not inadvertently disclosed 
as residue when transferring magnetic media between activities.
    4. When it is necessary to provide dial-up remote access for the 
processing of personal information, control access by computer-verified 
passwords. Change passwords periodically or whenever compromise is known 
or suspected.
    5. Normally the passwords shall give access only to those data 
elements (fields) required and not grant access to the entire data base.
    6. Do not rely totally on proprietary software products to protect 
personnel data during processing or storage.

                          F. Special Procedures

                        1. System Managers shall:

    a. Notify the ADP manager whenever personal information subject to 
this Regulation is to be processed by an ADP facility.
    b. Prepare and submit for publication all system notices and 
amendments and alterations thereto (see paragraph (f) of Sec. 310.60 of 
subpart G).
    c. Identify to the ADP manager those activities and individuals 
authorized access to the information and notify the manager of any 
changes to the access authorizations.

                         2. ADP personnel shall:

    a. Permit only authorized individuals access to the information.
    b. Adhere to the established information protection procedures and 
rules of conduct.
    c. Notify the system manager and ADP manager whenever unauthorized 
personnel seek access to the information.

                   3. ADP installation managers shall:

    a. Maintain an inventory of all computer program applications used 
to process information subject to this part to include the identity of 
the systems of records involved.
    b. Verify that requests for new programs or changes to existing 
programs have been published as required (see paragraphs (a) and (b) of 
Sec. 310.63, subpart G).
    c. Notify the system manager whenever changes to computer 
installations, communications networks, or any other changes in the ADP 
environment occur that require an altered system report be submitted 
(see paragraph (b) of Sec. 310.63, subpart G).

                           G. Record Disposal

    1. Dispose of records subject to this part so as to prevent 
compromise (see paragraph (c) of Sec. 310.13 of subpart B). Magnetic 
tapes or other magnetic medium, may be cleared by degaussing, 
overwriting, or erasing. Unclassified carbon ribbons are considered 
destroyed when placed in a trash receptacle.
    2. Do not use respliced waste computer products containing personal 
data.

   H. Risk Assessment for ADP Installations That Process Personal Data

    1. A separate risk assessment is not required for ADP installations 
that process classified material. A simple certification by the 
appropriate ADP official that the facility is cleared to process a given 
level of classified material (such as, Top Secret, Secret, or 
Confidential) and that the procedures followed in processing ``For 
Official Use Only'' material are to be followed in processing personal 
data subject to this Regulation is sufficient to meet the risk 
assessment requirement.

[[Page 862]]

    2. Prepare a formal risk assessment for each ADP installation (to 
include those activities with terminals and devices having access to ADP 
facilities) that processes personal information subject to this part and 
that do not process classified material.
    3. Address the following in the risk assessment:
    a. Identify the specific systems of records supported and determine 
their impact on the mission of the user.
    b. Identify the threats (internal, external, and natural) to the 
data.
    c. Determine the physical and operational (to include software) 
vulnerabilities.
    d. Evaluate the relationships between vulnerabilities and threats.
    e. Assess the impact of unauthorized disclosure or modification of 
the personal information.
    f. Identify possible safeguards and their relationships to the 
threats to be countered.
    g. Analyze the economic feasibility of adopting the identified 
safeguards.
    h. Determine the safeguard to be used and develop implementation 
plans.
    i. Discuss contingency plans including operational exercise plans.
    j. Determine if procedures proposed are consistent with those 
identified in the system notices for system of records concerned.
    k. Include a vulnerability assessment.
    3. The risk assessment shall be reviewed by the appropriate 
Component officials.
    4. Conduct a risk assessment at least every 5 years or when there is 
a change to the installation, its hardware, software, or administrative 
procedures that increase or decrease the likelihood of compromise or 
present new threats to the information.
    5. Protect the risk assessment as it is a sensitive document.
    6. Retain a copy of the risk assessment at the installation and make 
it available to appropriate inspectors and authorized personnel.
    7. Include a summary of the current risk assessment with any report 
of new or altered system submitted in accordance with paragraph (c) of 
Sec. 310.63, subpart G, for any system from which information will be 
processed.
    8. Complete a formal risk assessment at the beginning of the design 
phase for each new unclassified ADP installation and before beginning 
the processing of personal data on a regular basis in existing ADP 
facility that do not process classified data.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]

Appendix B to Part 310--Special Considerations for Safeguarding Personal 
                   Information During Word Processing

             (See paragraph (b) of Sec. 310.13, subpart B)

                             A. Introduction

    1. Normally, word processing support is provided under two general 
concepts. They are:
    a. Word processing centers (WPCs), and
    b. Work groups or clusters.
    2. A WPC generally provides support to one or more functional areas. 
Characteristically, the customer delivers (by written draft or 
dictation) the information to be processed to the WPC. The WPC process 
the information and returns it to the customer. There are generally two 
types of WPCs.
    a. A WPC may operate independent of the customer's functon, 
providing service in much the same manner as a data processing 
installation provides ADP support, or a message center provides 
electronic message service, or
    b. A WPC may work within a customer's function providing support to 
that function. The support being centralized in a WPC to take advantage 
of increased productivity.
    3. A work group or cluster generally consists of one or more pieces 
of word processing equipment that are integrated into the functional 
office support system. The overall word processing and functional 
management may be one and the same. Depending on the size of the support 
job, there may be a work group or cluster manager. Normally, however, 
they will be located within or in close proximity to the functional area 
supported. Information flows in and out of the work group or cluster by 
normal office routine and the personnel are an integral part of the 
office staff.

                   B. Minimum Standards of Protection

    1. Regardless of configuration (WPC or work group), all personal 
data processed using word processing equipment shall be afforded the 
standards of protection required by paragaph (b) of Sec. 310.13, 
subpart B.
    2. The remaining special considerations discussed in this appendix 
are primarily for WPCs operating independent of the customer's function. 
However, managers of other WPCs, work groups, and work clusters are 
encouraged to consider and adopt, when appropriate, the special 
considerations discussed herein.
    3. WPCs that are not independent of a customer's function, work 
groups, and work clusters are not required to prepare formal written 
risk assessments (see section H., below).

[[Page 863]]

                         C. WPC Information Flow

    1. In analyzing procedures required to safeguard adequately personal 
information in a WPC, the basic elements of WPC information flow and 
control must be considered. These are:
    a. Information receipt.
    b. Information processing.
    c. Information return.
    d. Information storage or filing.
    2. WPCs do not control information acquisition or its ultimate use 
by the customers and, therefore, these are not addressed.

               D. Safeguarding Information During Receipt

    1. The word processing manager shall establish procedures.
    a. That require each customer who requests that information subject 
to this part be processed to identify specifically that information to 
the WPC personnel. This may be done by:
    (1) Providing a check-off type entry on the WPC work requests;
    (2) Requiring that the WPC work requests be stamped with a special 
legend, or that a special notation be made on the work requests;
    (3) Predesignating specifically a class of documents as coming 
within the provisions of this part (such as, all officer effectiveness 
reports, all recall rosters, and all medical protocols).
    (4) Using a special cover sheet both to alert the WPC personnel as 
to the type information, and to protect the document during transmittal;
    (5) Requiring an oral warning on all dictation; or
    (6) Any other procedures that ensure the WPC personnel are alerted 
to the fact that personal data subject to this part is to be processed.
    b. To ensure that the operators or other WPC personnel receiving 
data for processing that has not been identified to be under the 
provisions of this part but that appear to be personal promptly call the 
information to the attention of the WPC supervisor or the customer;
    c. To ensure that any request for the processing of personal data 
that the customer has not identified as being in a system of records and 
that appears to meet the criteria set forth in paragraph (a) of Sec. 
310.10, subpart B is called to the attention of the appropriate 
supervisory personnel and system manager.
    2. The WPC supervisor shall ensure that personal information is not 
inadvertently compromised within the WPC.

              E. Safeguarding Information During Processing

    1. Each WPC supervisor shall establish internal safeguards that 
shall protect personal data from compromise while it is being processed.
    2. Physical safeguards may include:
    a. Controls on individual access to the center;
    b. Machine configurations that reduce external access to the 
information being processed, or arrangements that alert the operator to 
the presence of others;
    c. Using certain specific machines to process personal data;
    d. Any other physical safeguards, to include special technical 
arrangements that will protect the data during processing.
    3. Other safeguards may include:
    a. Using only certain selected operators to process personal data;
    b. Processing personal data only at certain times during the day 
without the WPC manager's specific authorization;
    c. Using only certain tapes or diskettes to process and store 
personal data;
    d. Using continuous tapes for dictation of personal data;
    e. Requiring all WPC copies of documents to be marked specifically 
so as to prevent inadvertent compromise;
    f. Returning extra copies and mistakes to the customer with the 
product;
    g. Disposing of waste containing personal data in a special manner;
    h. Any other local procedures that provide adequate protection to 
the data being processed.

                F. Safeguarding Information During Return

    1. The WPC shall protect the data until it is returned to the 
customer or placed into a formal distribution channel.
    2. In conjunction with the appropriate administrative support 
personnel and the WPC customers, the WPC manager shall establish 
procedures that protect the information from the time word processing is 
completed until it is returned to the customer.
    3. Safeguarding procedures may include:
    a. Releasing products only to specifically identifiable individuals;
    b. Using sealed envelopes to transmit products to the customer;
    c. Using special cover sheets to protect products similar to the one 
discussed in subparagraph D.1.a.(4), above;
    d. Handcarrying products to the customers;
    e. Using special messengers to return the products;
    f. Any other procedures that protect adequately products from 
compromise while they are awaiting return or being returned to the 
customer.

                      G. Safeguards During Storage

    1. The WPC manager shall ensure that all personal data retained in 
the center for any purpose (including samples) are protected properly.

[[Page 864]]

    2. Safeguarding procedures may include:
    a. Marking all hard copies retained with special legends or 
designators;
    b. Storing media containing personal data in separate files or 
areas;
    c. Marking the storage containers for media containing personal data 
with special legends or notations;
    d. Restricting the reuse of media used to process personal data or 
erasing automatically the media before reuse;
    e. Establishing special criteria for the WPC retention of media used 
to store and process personal data;
    f. Returning the media to the customer for retention with the file 
copies of the finished products;
    g. Discouraging, when practical, the long-term storage of personal 
data in any form within the WPC;
    h. Any other filing or storage procedures that safeguard adequately 
any personal information retained or filed within the WPC.

                       H. Risk Assessment for WPCs

    1. Each WPC manager shall ensure that a formal, written risk 
assessment is prepared for each WPC that processes personal information 
subject to this part.
    2. The assessment shall address the areas discussed in sections D., 
E., F., and G. of this appendix, as well as any special risks that the 
WPC location, configuration, or organization may present to the 
compromise or alteration of personal data being processed or stored.
    3. A risk assessment shall be conducted at least every 5 years or 
whenever there is a change of equipment, equipment configuration, WPC 
location, WPC configuration or modification of the WPC facilities that 
either increases or decreases the likelihood of compromise of personal 
data.
    4. Copies of the assessment shall be retained by the WPC manager and 
made available to appropriate inspectors, as well as to personnel 
studying equipment for facility upgrading or modification.
    5. Every new WPC shall have a formal risk assessment completed 
before beginning the processing of personal data.

        I. Special Considerations in WPC Design and Modification

    Procedures shall be established to ensure that all personnel 
involved in the design of WPCs or the acquisition of word processing 
equipment are aware of the special considerations required when 
processing personal data subject to this part.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]

            Appendix C to Part 310--DoD Blanket Routine Uses

             (See paragraph (e) of Sec. 310.41, subpart E)

                     A. Routine Use--Law Enforcement

    If a system of records maintained by a DoD Component to carry out 
its functions indicates a violation or potential violation of law, 
whether civil, criminal, or regulatory in nature, and whether arising by 
general statute or by regulation, rule, or order issued pursuant 
thereto, the relevant records in the system of records may be referred, 
as a routine use, to the agency concerned, whether federal, state, 
local, or foreign, charged with the responsibility of investigating or 
prosecuting such violation or charged with enforcing or implementing the 
statute, rule, regulation, or order issued pursuant thereto.

         B. Routine Use--Disclosure when Requesting Information

    A record from a system of records maintained by a Component may be 
disclosed as a routine use to a federal, state, or local agency 
maintaining civil, criminal, or other relevant enforcement information 
or other pertinent information, such as current licenses, if necessary 
to obtain information relevant to a Component decision concerning the 
hiring or retention of an employee, the issuance of a security 
clearance, the letting of a contract, or the issuance of a license, 
grant, or other benefit.

           C. Routine Use--Disclosure of Requested Information

    A record from a system of records maintained by a Component may be 
disclosed to a federal agency, in response to its request, in connection 
with the hiring or retention of an employee, the issuance of a security 
clearance, the reporting of an investigation of an employee, the letting 
of a contract, or the issuance of a license, grant, or other benefit by 
the requesting agency, to the extent that the information is relevant 
and necessary tothe requesting agency's decision on the matter.

                 D. Routine Use--Congressional Inquiries

    Disclosure from a system of records maintained by a Component may be 
made to a congressional office from the record of an individual in 
response to an inquiry from the congressional office made at the request 
of that individual.

               E. Routine Use--Private Relief Legislation

    Relevant information contained in all systems of records of the 
Department of Defense published on or before August 22, 1975, will be 
disclosed to the OMB in connection with the review of private relief 
legislation as set forth in OMB Circular A-19 (reference (u)) at

[[Page 865]]

any stage of the legislative coordination and clearance process as set 
forth in that Circular.

    F. Routine Use--Disclosures Required by International Agreements

    A record from a system of records maintained by a Component may be 
disclosed to foreign law enforcement, security, investigatory, or 
administrative authorities to comply with requirements imposed by, or to 
claim rights conferred in, international agreements and arrangements 
including those regulating the stationing and status in foreign 
countries of DoD military and civilian personnel.

    G. Routine Use--Disclosure to State and Local Taxing Authorities

    Any information normally contained in Internal Revenue Service (IRS) 
Form W-2 which is maintained in a record from a system of records 
maintained by a Component may be disclosed to state and local taxing 
authorities with which the Secretary of the Treasury has entered into 
agreements under 5 U.S.C., sections 5516, 5517, and 5520 (reference (v)) 
and only to those state and local taxing authorities for which an 
employee or military member is or was subject to tax regardless of 
whether tax is or was withheld. This routine use is in accordance with 
Treasury Fiscal Requirements Manual Bulletin No. 76-07.

    H. Routine Use--Disclosure to the Office of Personnel Management

    A record from a system of records subject to the Privacy Act and 
maintained by a Component may be disclosed to the Office of Personnel 
Management (OPM) concerning information on pay and leave, benefits, 
retirement deduction, and any other information necessary for the OPM to 
carry out its legally authorized government-wide personnel management 
functions and studies.

 I. Routine Use--Disclosure to the Department of Justice for Litigation

    A record from a system of records maintained by this component may 
be disclosed as a routine use to any component of the Department of 
Justice for the purpose of representing the Department of Defense, or 
any officer, employee or member of the Department in pending or 
potential litigation to which the record is pertinent.

   J. Routine Use--Disclosure to Military Banking Facilities Overseas

    Information as to current military addresses and assignments may be 
provided to military banking facilities who provide banking services 
overseas and who are reimbursed by the Government for certain checking 
and loan losses. For personnel separated, discharged, or retired from 
the Armed Forces, information as to last known residential or home of 
record address may be provided to the military banking facility upon 
certification by a banking facility officer that the facility has a 
returned or dishonored check negotiated by the individual or the 
individual has defaulted on a loan and that if restitution is not made 
by the individual, the U.S. Government will be liable for the losses the 
facility may incur.

   K. Routine Use--Disclosure of Information to the General Services 
                          Administration (GSA)

    A record from a system of records maintained by this component may 
be disclosed as a routine use to the General Services Administration 
(GSA) for the purpose of records management inspections conducted under 
authority of 44 U.S.C. 2904 and 2906.

 L. Routine Use--Disclosure of Information to the National Archives and 
                      Records Administration (NARA)

    A record from a system of records maintained by this component may 
be disclosed as a routine use to the National Archives and Records 
Administration (NARA) for the purpose of records management inspections 
conducted under authority of 44 U.S.C. 2904 and 2906.

    M. Routine Use--Disclosure to the Merit Systems Protection Board

    A record from a system of records maintained by this component may 
be disclosed as a routine use to the Merit Systems Protection Board, 
including the Office of the Special Counsel for the purpose of 
litigation, including administrative proceedings, appeals, special 
studies of the civil service and other merit systems, review of OPM or 
component rules and regulations, investigation of alleged or possible 
prohibited personnel practices; including administrative proceedings 
involving any individual subject of a DoD investigation, and such other 
functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be 
authorized by law.

               N. Routine Use-Counterintelligence Purpose

    A record from a system of records maintained by this component may 
be disclosed as a routine use outside the DoD or the U.S. Government for 
the purpose of counterintelligence activities authorized by U.S. Law or 
Executive Order or for the purpose of enforcing laws which protect the 
national security of the United States.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991; 62 FR 18518, Apr. 16, 1997]

[[Page 866]]

   Appendix D to Part 310--Provisions of the Privacy Act From Which a 
              General or Specific Exemption May Be Claimed

             [See paragraph (d) of Sec. 310.50, subpart F]
------------------------------------------------------------------------
                 Exemption
--------------------------------------------  Section of the Privacy Act
        (j)(2)               (k)(1-7)
------------------------------------------------------------------------
No...................  No..................  (b)(1) Disclosures within
                                              the Department of Defense.
No...................  No..................  (2) Disclosures to the
                                              public.
No...................  No..................  (3) Disclosures for a
                                              ``routine use.''
No...................  No..................  (4) Disclosures to the
                                              Bureau of Census.
No...................  No..................  (5) Disclosures for
                                              statistical research and
                                              reporting.
No...................  No..................  (6) Disclosures to the
                                              National Archives.
No...................  No..................  (7) Disclosures for law
                                              enforcement purposes.
No...................  No..................  (8) Disclosures under
                                              emergency circumstances.
No...................  No..................  (9) Disclosures to the
                                              Congress.
No...................  No..................  (10) Disclosures to the
                                              General Accounting Office.
No...................  No..................  (11) Disclosures pursuant
                                              to court orders.
No...................  No..................  (12) Disclosure to consumer
                                              reporting agencies.
No...................  No..................  (c)(1) Making disclosure
                                              accountings.
No...................  No..................  (2) Retaining disclosure
                                              accountings.
Yes..................  Yes.................  (c)(3) Making disclosure
                                              accounting available to
                                              the individual.
Yes..................  No..................  (c)(4) Informing prior
                                              recipients of corrections.
Yes..................  Yes.................  (d)(1) Individual access to
                                              records.
Yes..................  Yes.................  (2) Amending records.
Yes..................  Yes.................  (3) Review of the
                                              component's refusal to
                                              amend a record.
Yes..................  Yes.................  (4) Disclosure of disputed
                                              information.
Yes..................  Yes.................  (5) Access to information
                                              compiled in anticipation
                                              of civil action.
Yes..................  Yes.................  (e)(1) Restrictions on
                                              collecting information.
Yes..................  No..................  (e)(2) Collecting directly
                                              from the individual.
Yes..................  No..................  (3) Informing individuals
                                              from whom information is
                                              requested.
No...................  No..................  (e)(4)(A) Describing the
                                              name and location of the
                                              system.
No...................  No..................  (B) Describing categories
                                              of individuals.
No...................  No..................  (C) Describing categories
                                              of records.
No...................  No..................  (D) Describing routine
                                              uses.
No...................  No..................  (E) Describing records
                                              management policies and
                                              practices.
No...................  No..................  (F) Identifying responsible
                                              officials.
Yes..................  Yes.................  (e)(4)(G) Procedures for
                                              determining if a system
                                              contains a record on an
                                              individual.
Yes..................  Yes.................  (H) Procedures for gaining
                                              access.
Yes..................  Yes.................  (I) Describing categories
                                              of information sources.
Yes..................  No..................  (e)(5) Standards of
                                              accuracy.
No...................  No..................  (e)(6) Validating records
                                              before disclosure.
No...................  No..................  (e)(7) Records of first
                                              amendment activities.
No...................  No..................  (e)(8) Notification of
                                              disclosure under
                                              compulsory legal process.
No...................  No..................  (e)(9) Rules of conduct.
No...................  No..................  (e)(10) Administrative,
                                              technical and physical
                                              safeguards.
No...................  No..................  (11) Notice for new and
                                              revised routine uses.
Yes..................  Yes.................  (f)(1) Rules for
                                              determining if an
                                              individual is subject of a
                                              record.
Yes..................  Yes.................  (f)(2) Rules for handling
                                              access requests.
Yes..................  Yes.................  (f)(3) Rules for granting
                                              access.
Yes..................  Yes.................  (f)(4) Rules for amending
                                              records.
Yes..................  Yes.................  (f)(5) Rules regarding
                                              fees.
Yes..................  No..................  (g)(1) Basis for civil
                                              action.
Yes..................  No..................  (g)(2) Basis for judicial
                                              review and remedies for
                                              refusal to amend.
Yes..................  No..................  (g)(3) Basis for judicial
                                              review and remedies for
                                              denial of access.
Yes..................  No..................  (g)(4) Basis for judicial
                                              review and remedies for
                                              other failure to comply.
Yes..................  No..................  (g)(5) Jurisdiction and
                                              time limits.
Yes..................  No..................  (h) Rights of legal
                                              guardians.
No...................  No..................  (i)1) Criminal penalties
                                              for unauthorized
                                              disclosure.
No...................  No..................  (2) Criminal penalties for
                                              failure to publish.
No...................  No..................  (3) Criminal penalties for
                                              obtaining records under
                                              false pretenses.
Yes \1\..............  No..................  (j) Rulemaking requirement.
N/A..................  No..................  (j)(1) General exemption
                                              for the Central
                                              Intelligence Agency.
N/A..................  No..................  (i)(2) General exemption
                                              for criminal law
                                              enforcement records.
Yes..................  N/A.................  (k)(1) Exemption for
                                              classified material.
N/A..................  N/A.................  (k)(2) Exemption for law
                                              enforcement material.
Yes..................  N/A.................  (k)(3) Exemption for
                                              records pertaining to
                                              Presidential protection.
Yes..................  N/A.................  (k)(4) Exemption for
                                              statistical records.
Yes..................  N/A.................  (k)(5) Exemption for
                                              investigatory material
                                              compiled for determining
                                              suitability for employment
                                              or service.
Yes..................  N/A.................  (k)(6) Exemption for
                                              testing or examination
                                              material.
Yes..................  N/A.................  (k)(7) Exemption for
                                              promotion evaluation
                                              materials used by the
                                              Armed Forces.
Yes..................  No..................  (l)(1) Records stored in
                                              NARA records centers.
Yes..................  No..................  (l)(2) Records archived
                                              before Sept. 27, 1975.
Yes..................  No..................  (l)(3) Records archived on
                                              or after Sept. 27, 1975.
Yes..................  No..................  (m) Applicability to
                                              Government contractors.
Yes..................  No..................  (n) Mailing lists.
Yes \1\..............  No..................  (o) Reports on new systems.
Yes \1\..............  No..................  (p) Annual report.
------------------------------------------------------------------------
\1\ See paragraph (d) of Sec. 310.50, subpart F.


[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991; 62 FR 26389, May 14, 1997]

   Appendix E to Part 310--Sample of New or Altered System of Records 
                  Notice in ``Federal Register'' Format

(See paragraph (f) of Sec. 310.60, subpart G)

DEPARTMENT OF DEFENSE


[[Page 867]]


Defense Nuclear Agency

Privacy Act of 1974; New System of Records

agency: Defense Nuclear Agency (DNA).

action: Notice of a new record system.




summary: The Defense Nuclear Agency is adding a new system of records to 
its inventory of systems of records subject to the Privacy Act of 1974. 
The system notice for the new system is set forth below.

dates: This system shall be effective (30 days after publication in the 
Federal Register) unless comments are received which result in a 
contrary determination.

address: Send comments to the System Manager identified in the system 
notice.

for further information contact: Robert L. Brittigan, General Counsel, 
Defense Nuclear Agency, Washington, DC 20305, Telephone (202) 325-7681.

supplementary information: The Defense Nuclear Agency record system 
notice as prescribed by the Privacy Act of 1974 (5 U.S.C. 552a), as 
amended, have appeared in the Federal Register on September 28, 1981 (46 
FR 51073) and February 16, 1982 (47 FR 6829).
    The Defense Nuclear Agency has submitted a new system report on 
March 27, 1982, for this system of records under the provisions of 5 
U.S.C. 552a(o) of the Privacy Act.

    Patricia H. Means,

    OSD Federal Register Liaison Officer, Department of Defense.

                                 Sample

                               HDNA 609-03

    System name: Personnel Exposed to Radiation from Nuclear Tests.
    System Location: Headquarters, Defense Nuclear Agency, Washington, 
DC 20305, Main computer location.
    Categories of individuals covered by the system: All DoD and DoD-
affiliated personnel, military and civilian, who participated in the 
U.S. Government atmospheric nuclear test programs in the Pacific and at 
the Nevada Test Site.
    Categories of records in the system: Personal information consisting 
of name, rank, service number, last known or current address, dates of 
test participation, exposure and unit of assignment.
    Authority for maintenance of the system: 10 U.S.C. Section 133, 
Powers of an Executive Department of a Military Department to Prescribe 
Departmental Regulations; 10 U.S.C. Section 133, Secretary of Defense: 
Appointment, Powers, Duties and Delegation by; DoD Directive 5105.31, 
``Defense Nuclear Agency (DNA).''
    Purpose(s): To identify those individuals who may have been exposed 
to radiation from nuclear atmospheric test conducted by the U.S. 
Government in the Pacific or at the Nevada Test Site.
    Information is provided to the medical services of all the Military 
Departments to identify military and retired personnel who were exposed 
to ionizing radiator during testing.
    Routine uses of records maintained in the system including 
categories of users, and the purpose of such uses:
    To the National Research Council and Center for Disease Control to 
determine the effects of ionizing radiation for the limited purpose of 
conducting epidemiological studies of the atmospheric nuclear weapons 
tests on DoD participants in those tests.
    To the Department of Energy (DoE) to identify DoE contractor 
personnel exposed to ionizing radiation during nuclear testing for the 
limited purpose of conducting epidemiological studies of radiation 
effects of individuals so identified.
    To the Department of Transportation (DoT) for the limited purpose of 
identifying DoT and DoT-affiliated personnel exposed to ionizing 
radiation during nuclear testing.
    To the Veterans Administration to make determinations on service-
connected disability for the purpose of resolving claims.
    Policies and Practices for storing, retrieving, accessing, 
retaining, and disposing of records in the system.
    Storage: Paper records in file folders; computer magnetic tape disks 
and printouts in secure computer facility.
    Retrievability: Paper records filed in folders and computer magnetic 
tape and disk retrieved by name.
    Safeguards: Paper records are filed in folders stored in locked 
security safes. Magnetic tapes stored in a vault in a secure computer 
area.
    Retention and disposal: Paper records are retained until information 
is transferred to magnetic tapes; then destroyed. Magnetic tapes and 
disks are retained indefinitely.
    System manager(s) and address: Director, Defense Nuclear Agency, 
Attn.: Privacy Act Officer, Washington, DC 20305, telephone (202) 325-
7681.
    Notification procedure: Information may be obtained from the System 
Manager.
    Record access procedures: Requests should be addressed to the System 
Manager.
    Contesting record procedures: The agency's rules for contesting 
contents and appealing initial determinations are contained in DNA 
Instruction 5400.11 (32 CFR part 318). Additional information may be 
obtained from the System Manager.
    Record source categories: DNA records, searches of DoD records by 
other DoD Components, and from individuals voluntarily contacting DNA by 
telephone or mail.

[[Page 868]]

    Systems exempted from certain provision of the Act: None.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
asd amended at 56 FR 57801, Nov. 14, 1991]

     Appendix F to Part 310--Format for New or Altered System Report

             (See paragraph (c) of Sec. 310.63, subpart G)

    The report on a new or altered system shall consist of a transmittal 
letter, a narrative statement, and include supporting documentation.
    A. Transmittal Letter. The transmittal letter to the Director, 
Defense Privacy Office, ODASD(A), shall include any request for waivers 
as set forth in paragraph (g) of Sec. 310.63, subpart G. The narrative 
statement shall be attached thereto.
    B. Narrative Statement. The narrative statement is typed in double 
space on standard bond paper in the format shown at attachment 1. The 
statement includes:
    1. System identification and name. This caption sets forth the 
identification and name of the system (see paragraphs (b) and (c) of 
Sec. 310.62, subpart G).
    2. Responsible official. The name, title, address, and telephone 
number of the privacy official responsible for the report and to whom 
inquiries and comments about the report may be directed by Congress, the 
Office of Management and Budget, or Defense Privacy Office.
    3. Purpose of the system or nature of the change proposed. Describe 
the purpose of the new system. For an altered system, describe the 
nature of the change being proposed.
    4. Authority for the system. See paragraph (g) of Sec. 310.62, 
subpart G.
    5. Number of individuals. The approximate number of individuals 
about whom records are to be maintained.
    6. Information on First Amendment activities. Describe any 
information to be kept on the exercise of individual's First Amendment 
rights and the basis for maintaining it as provided for in paragraph (e) 
of Sec. 310.10, subpart B.
    7. Measures to ensure information accuracy. If the system is to be 
used to make determinations about the rights, benefits, or entitlements 
of individuals; describe the measures being established to ensure the 
accuracy, currency, relevance, and completeness of the information used 
for these purposes.
    8. Other measures to ensure system security: Describe the steps 
taken to minimize the risk of unauthorized access to the system. A more 
detailed assessment of security risks and specific administrative, 
technical, and physical safeguards shall be available for review upon 
request.
    9. Relationship to state and local government activities. Describe 
the relationship of the system to state or local government activities 
that are the sources, recipients, or users of the information in the 
system.
    C. Supporting Documentation. Item 10 of the narrative is captioned 
Supporting Documents. A positive statement for this caption is essential 
for those enclosures that are not required to be enclosed. For example, 
``No changes to the existing Army procedural or exemption rules (32 CFR 
part 505) are required for this proposed system.'' List in numerical 
sequence only those enclosures that are actually furnished. The 
following are typical enclosures that may be required:
    1. For a new system, an advance copy of the system notice which is 
proposed for publication. For an altered system (see paragraph (d) of 
Sec. 310.64, subpart G) an advance copy of the notice reflecting the 
specific changes proposed.
    2. An advance copy of any new rules or changes to the published 
Component rules to be issued for the new or altered system. If no change 
to existing rules is required, so state in the narrative.
    3. An advance copy of any proposed exemption rule if the new or 
altered system is to be exempted in accordance with subpart F. If there 
is no exemption, so state in the narrative.
    4. Any other supporting documentation that may be pertinent or 
helpful in understanding the need for the system or clarifying its 
intended use. While not required, such documentation, when available, is 
helpful in evaluating the new or altered system.

           Attachment 1--Sample Format for Narrative Statement

                          DEPARTMENT OF DEFENSE

                            (Component Name)

     REPORT ON NEW (OR ALTERED) SYSTEM UNDER THE PRIVACY ACT OF 1974

    (Indicate none or not applicable, as appropriate.)
    1. System Identification and name:
    2. Responsible official:
    3. Purpose(s) of the System: (for a new system only) or Nature of 
the Change(s) Proposed: (for altered system).
    4. Authority for the System:
    5. Number of Individuals:
    6. Information on First Amendment Activities:
    7. Measures to Ensure Information Accuracy:
    8. Other Measures to Ensure System Security:
    9. Relations to State or Local Government Activities:
    10. Supporting Documentation: (Indicate here, as a positive 
statement, those enclosures not required as set forth in section C. of 
the format instructions.)

[[Page 869]]

                 SIGNATURE BLOCK OF SUBMITTING OFFICIAL

                       Attachment 2--Sample Report

                          DEPARTMENT OF DEFENSE

                         Defense Nuclear Agency

           REPORT ON NEW SYSTEM UNDER THE PRIVACY ACT OF 1974

    1. System Identification and Name: HDNA 609-03, entitled ``Personnel 
Exposed To Radiation From Nuclear Tests.''
    2. Responsible Official: Robert L. Brittigan, General Counsel, 
Defense Nuclear Agency, Washington, DC 20305. Telephone: Area Code 202 
325-7781.
    3. Purpose(s) of the System: To consolidate into one system the 
names, addresses, and exposures of all DoD or DoD-assoicated personnel 
who may have been exposed to ionizing radiation during the atmospheric 
nuclear testing programs in the Pacific and at the Nevada Test Site.
    4. Authority for the System: See ``Authority for Maintenance of the 
System'' caption of the attached proposed system notice.
    5. Number of Individuals: Approximately 300,00 individuals will be 
affected by this new system, since the system includes all DoD and DoD-
affiliated participants in the atmospheric nuclear tests program.
    6. Information on First Amendment Activities: None.
    7. Measures to Ensure Information Accuracy: Records consist of 
personal data to be provided by the individual such as name, rank, 
service number, last known or current address, dates of test 
participation, exposure date, if available, and unit of assignment. When 
the information has been obtained from sources other than the 
individual, follow-up is attempted to ensure accuracy.
    8. Other Measures to Ensure System Security:
    a. Paper records before processing for computer storage are retained 
in locked filing cabinets located in limited access facilities at DNA 
Headquarters and the Armed Forces Radiobiology Research Institute.
    b. Privacy data in the Headquarters, DNA, ADP facility is afforded 
the same protection as classified data in that the DNA computer system 
employs a File Security System (FSS) to protect classified and privacy 
data files from being accessed by unauthorized user.
    9. Relations to State and Local Government Activities: None
    10. Supporting Documentation: No changes to existing procedural or 
exemption rules are required for this proposed new system.

    Robert L. Brittigan
    General Counsel

                              Enclosures--2

    1. Advance copy of proposed system notice.
    2. Copy of tasking memorandum from the Assistant Secretary of 
Defense (Manpower, Reserve Affairs, and Logistics) to the Director, 
Defense Nuclear Agency, ``DoD Personnel Participation in Atmosperic 
Nuclear Weapons Testing,'' January 28, 1978.
    Note: Enclosures are not included in the sample, above.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]

   Appendix G to Part 310--Sample Deletions and Amendments to Systems 
                 Notices in ``Federal Register'' Format

             (See paragraph (d) of Sec. 310.64, subpart G)

                          DEPARTMENT OF DEFENSE

                         Department of Air Force

Privacy Act of 1974; Deletions and Amendments to Systems of Records 
Notices
Agency: Department of the Air Force, DoD.

Action: Notice of deletions and amendments to systems of records.




Summary: The Air Force proposes to delete three and amend two notices 
for systems of records subject to the Privacy Act of 1974. The specific 
changes to the notices being amended are set forth below followed by the 
system notices, as amended, published in their entirety.

Dates: These systems notices shall be amended as proposed without 
further notice on (30 days after publication in the Federal Register 
unless comments are received that would result in a contrary 
determination.

Address: Send comments to the system manager identified in the 
particular system notice concerned.

For Further Information Contact: Mr. Jon E. Updike, HQ USAF/DAQD, The 
Pentagon, Washington, DC 20330-5024, Telephone: (202) 694-3431 Autovon: 
224-3431

Supplementary Information: The Air Force sytems of records notices 
inventory subject to the Privacy Act of 1974 (5 U.S.C. 552a), as 
amended, have been published to date in the Federal Register as follows:

FR Doc. 80-28255 (46 FR 50785) September 28, 1980
FR Doc. 80-31218 (46 FR 56774) October 28, 1980
FR Doc. 80-32284 (46 FR 58195) November 8, 1980
FR Doc. 80-33780 (46 FR 59996) November 23, 1980

    The proposed amendments are not within the purview of the provisions 
of 5 U.S.C. 552a(o) which requires the submission of an altered system 
report.


[[Page 870]]


    Patricia H. Means,
    OSD Federal Register Liaison Officer, Department of Defense.

                                Deletions

                             F01001 OQPTFLA

    System name: Human Reliability for Special Missions.
    Reason: This system is covered by F03004 AFDPMDB Advanced Personnel 
Data System (APDS) (46 FR 50821) August 28, 1981.

                             F01003 OBXQPCA

    System name: Cadet Promotion List.
    Reason: This system has been incorporated into F03502 AFA A Cadet 
Management System (46 FR 50875) July 28, 1981.

                             F01102 OYUEBLA

    System name: Locator or Personnel Data file.
    Reason: This sytem is covered by F01102 DAYX A Base, Unit, and 
Organizational Military and Civilian Personnel Locator Files (46 FR 
50800) October 28, 1981.

                               Amendments

                             F03501 DPMDQIA

    System name: Military Personnel Records System.
    Changes:
    System Location: In line 8, change ``Adjustment'' to Adjutant''.
    External users, uses and purposes:
    Add at end:
    ``American National Red Cross. Information to local Red Cross 
offices for emergency assistance to military members, dependents, 
relatives, or other persons if conditions are compelling.''
    ``Drug Enforcement Administration'' (added to those agencies listed 
under Department of Justice).
    ``Department of Labor: Bureau of Employees' Compensation--medical 
information for claims of civilian employees formerly in military 
service; Employment and Training Administration--verification of 
service-related information for unemployment compensation claims; Labor-
Management Services Administration--for investigations of possible 
violations of labor laws and preemployment investigations; National 
Research Council--for medical research purposes; U.S. Soldiers' and 
Airmen's Home--service information to determine eligibility.''

                             F03504 OJMPLSC

    System name: Assessments Screening Records.
    Changes:
    System location: In line 1, change ``3700 Personnel Processing 
Group'' to ``3507 Airman Classification Squadron.''
    Retention and disposal: Delete entry and substitute: ``Records on 
airmen accepted for sensitive or high risk assignments are retained in 
the office files for 18 months, then destroyed. Records of nonselectees 
are retained in office files for 1 year, then destroyed. Destruction is 
by tearing into pieces, shredding, pulping, macerating, or burning.''
    Systems manager: In line 1, change ``3700 PPGP (CCO),'' to ``3507 
Airman Classification Squadron.''
    Record source categories: Add at end, ``peers, character references, 
and the individual member.''

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]

             Appendix H to Part 310--Litigation Status Sheet

                     (See Sec. 310.104, subpart K)

    1. Case Number.\1\
---------------------------------------------------------------------------

    \1\ Number used by the Component for reference purposes
---------------------------------------------------------------------------

    2. Requester.
    3. Document Title or Description. \2\
---------------------------------------------------------------------------

    \2\ Indicate the nature of the case, such as, ``Denial of access,'' 
``Refusal to amend,'' ``Incorrect records,'' or other violations of the 
Act (specify).
---------------------------------------------------------------------------

    4. Litigation:
    a. Date Complaint Filed.
    b. Court.
    c. Case File Number \1\
    5. Defendants (DoD Component and individual).
    6. Remarks (brief explanation of what the case is about).
    7. Court Action:
    a. Court's Finding.
    b. Disciplinary Action (as appropriate).
    8. Appeal (as appropriate):
    a. Date Complaint Filed.
    b. Court.
    c. Case File Number. \1\
    d. Court's Finding.
    e. Disciplinary Action (as appropriate).

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]

 Appendix I to Part 310--Office of Management and Budget (OMB) Matching 
                               Guidelines

                     (See Sec. 310.110, subpart L)

    A. Purpose. These guidelines supplement and shall be used in 
conjunction with OMB

[[Page 871]]

Guidelines on the Administration of the Privacy Act of 1974, issued on 
July 1, 1975, and supplemented on November 21, 1975. They replace 
earlier guidance on conducting computerized matching programs issued on 
March 30, 1979. They are intended to help agencies relate the procedural 
requirements of the Privacy Act to the operational requirements of 
computerized matching. They are designed to address the concerns 
expressed by the Congress in the Privacy Act of 1974 that ``the 
increasing use of computers and sophisticated information technology, 
while essential to the efficient operation of the Government, has 
greatly magnified the harm to individual privacy that can occur from any 
collection, maintenance, use, or dissemination of personal 
information.'' These guidelines do not authorize activities that are not 
permitted by law, nor do they prohibit activities expressly required to 
be performed by law. Complying with these guidelines, however, does not 
relieve a federal agency of the obligation to comply with the provisions 
of the Privacy Act, including any provisions not cited in these 
guidelines.
    B. Scope. These guidelines apply to all agencies subject to the 
Privacy Act of 1974 (5 U.S.C. 552a) and to all matching programs:
    1. Performed by a federal agency, whether the personal records used 
in the match are federal or nonfederal.
    2. For which a federal agency discloses any personal records for use 
in a matching program performed by any other federal agency or any 
nonfederal organization.
    C. Effective Date. These guidelines are effective on May 11, 1982.
    D. Definitions. For the purposes of the Guidelines, all the terms 
defined in the Privacy Act of 1974 apply.
    1. Personal Record. Any information pertaining to an individual that 
is stored in an automated system of records; for example, a data base 
which contains information about individuals that is retrieved by name 
or some other personal identifier.
    2. Matching Program. A procedure in which a computer is used to 
compare two or more automated systems of records or a system of records 
with a set of nonfederal records to find individuals who are common to 
more than one system or set. The procedure includes all of the steps 
associated with the match, including obtaining the records to be 
matched, actual use of the computer, administrative and investigative 
action on the hits, and disposition of the personal records maintained 
in connection with the match. It should be noted that a single matching 
program may involve several matches among a number of participants. 
Matching programs do not include the following:
    a. Matches that do not compare a substantial number of records, such 
as, comparison of the Department of Education's defaulted student loan 
data base with the Office of Personnel Management's federal employee 
data base would be covered; comparison of six individual student loan 
defaultees with the OPM file would not be covered.
    b. Checks on specific individuals to verify data in an application 
for benefits done reasonably soon after the application is received.
    c. Checks on specific individuals based on information which raises 
questions about an individual's eligibility for benefits or payments 
done reasonably soon after the information is received.
    d. Matches done to produce aggregate statistical data without any 
personal identifiers.
    e. Matches done to support any research or statistical project when 
the specific data are not to be used to make decisions about the rights, 
benefits, or privileges of specific individuals.
    f. Matches done by an agency using its own records.
    3. Matching Agency. The federal agency which actually performs the 
match.
    4. Source Agency. The federal agency which discloses records from a 
system of records to be used in the match. Note that in some 
circumstances a source agency may be the instigator and ultimate 
beneficiary of the matching program, as when an agency lacking computer 
resources uses another agency to perform the match. The disclosure of 
records to the matching agency and any later disclosure of ``hits'' (by 
either the matching or the source agencies) must be done in accordance 
with the provisions of paragraph (b) of the Privacy Act.
    5. Hit. The identification, through a matching program, of a 
specific individual.
    E. Guidelines for Agencies Participating in Matching Programs. 
Agencies should acquire and disclose matching records and conduct 
matching programs in accordance with the provisions of this section and 
the Privacy Act.
    1. Disclosing Personal Records for Matching Programs.
    a. To another federal agency. Source agencies are responsible for 
determining whether or not to disclose personal records from their 
systems and for making sure they meet the necessary Privacy Act 
disclosure provisions when they do. Among the factors source agencies 
should consider are:
    (1) Legal authority for the match;
    (2) Purpose and description of the match;
    (3) Description of the records to be matched;
    (4) Whether the record subjects have consented to the match; or 
whether disclosure of records for the match would be compatible with the 
purpose for which the records were

[[Page 872]]

originally collected; that is, whether disclosure under a ``routine 
use'' would be appropriate; whether the soliciting agency is seeking the 
records for a legitimate law enforcement activity--whichever is 
appropriate; or any other provision of the Privacy Act under which 
disclosure may be made;
    (5) Description of additional information which may be subsequently 
disclosed in relation to ``hits'';
    (6) Subsequent actions expected of the source (for example, 
verification of the identity of the ``hits'' or follow-up with 
individuals who are ``hits'');
    (7) Safeguards to be afforded the records involved, including 
disposition.
    b. If the agency is satisfied that disclosure of the records would 
not violate its responsibilities under the Privacy Act, it may proceed 
to make the disclosure to the matching agency. It should ensure that 
only the minimum information necessary to conduct the match is provided. 
If disclosure is to be made pursuant to a ``routine use'' (Section 
(b)(3) of the Privacy Act), it should ensure that the system of records 
contains such a use, or it should publish a routine use notice in the 
Federal Register. The agency should also be sure to maintain an 
accounting of the disclosures pursuant to Section (c) of the Privacy 
Act.
    c. To a nonfederal entity. Before disclosing records to a nonfederal 
entity for a matching program to be carried out by that entity, a source 
agency should, in addition to all of the consideration in paragraph 
E.1.a., above, also make reasonable efforts, pursuant to Section (e)(6) 
of the Privacy Act, to ``assure that such records are accurate, 
complete, timely, and relevant for agency purposes.''
    2. Written Agreements. Before disclosing to either a federal or 
nonfederal entity, the source agency should require the matching entity 
to agree in writing to certain conditions governing the use of the 
matching file; for example, that the matching file will remain the 
property of the source agency and be returned at the end of the matching 
program (or destroyed as appropriate); that the file will be used and 
accessed only to match the file or files previously agreed to; that it 
will not be used to extract information concerning ``non-hit'' 
individuals for any purpose, and that it will not be duplicated or 
disseminated within or outside the matching agency unless authorized in 
writing by the source agency.
    3. Performing Matching Programs. (a) Matching agencies should 
maintain reasonable administrative, technical, and physical security 
safeguards on all files involved in the matching program.
    (b) Matching agencies should insure that they have appropriate 
systems of records including those containing ``hits,'' and that such 
systems and any routine uses have been appropriately noticed in the 
Federal Register and reported to OMB and the Congress, as appropriate.
    4. Disposition of Records. a. Matching agencies will return or 
destroy source matching files (by mutual agreement) immediately after 
the match.
    b. Records relating to hits will be kept only so long as an 
investigation, either criminal or administrative, is active, and will be 
disposed of in accordance with the requirements of the Privacy Act and 
the Federal Records Schedule.
    5. Publication Requirements. a. Agencies, before disclosing records 
outside the agency, will publish appropriate ``routine use'' notices in 
the Federal Register, if necessary.
    b. If the matching program will result in the creation of a new or 
the substantial alteration of an existing system of records, the agency 
involved should publish the appropriate Federal Register notice and 
submit the requisite report to OMB and the Congress pursuant to OMB 
Circular No. A-108.
    6. Reporting Requirements. a. As close to the initiation of the 
matching program as possible, matching agencies shall publish in the 
Federal Register a brief public notice describing the matching program. 
The notice should include:
    (1) The legal authority under which the match is being conducted;
    (2) A description of the matching program including whether the 
program is one time or continuing, the organizations involved, the 
purpose or purposes for which the program is being conducted, and the 
procedures to be used in matching and following up on the ``hits'';
    (3) A complete description of the personal records to be matched, 
including the source or sources, system of records identifying data, 
date or dates and page number of the most recent Federal Register full 
text publication when appropriate;
    (4) The projected start and ending dates of the program;
    (5) The security safeguards to be used to protect against 
unauthorized access or disclosure of the personal records; and
    (6) Plans for disposition of the source records and ``hits.''
    7. Agencies should send a copy of this notice to the Congress and to 
OMB at the same time it is sent to the Federal Register.
    a. Agencies should report new or altered systems of records as 
described in paragraph E.5.b., above, as necessary.
    b. Agencies should also be prepared to report on matching programs 
pursuant to the reporting requirements of either the Privacy Act or the 
Paperwork Reduction Act. Reports will be solicited by the Office of 
Information and Regulatory Affairs and will focus on both the protection 
of individual privacy and the government's effective use of information 
technology. Reporting instructions will be disseminated to the agencies 
as part

[[Page 873]]

of either the reports required by paragraph (p) of the Privacy Act, or 
Section 3514 of Pub. L. 96-511.
    8. Use of Contractors. Matching programs should, as far as 
practicable, be conducted ``in-house'' by federal agencies using agency 
personnel, rather than by contract. When contractors are used, however,
    a. The matching agency should, consistent with paragraph (m) of the 
Privacy Act, cause the requirements of that Act to be applied to the 
contractor's performance of the matching program. The contract should 
include the Privacy Act clause required by Federal Personnel Regulation 
Amendment 155 (41 CFR 1-1.337-5);
    b. The terms of the contract should include appropriate privacy and 
security provisions consistent with policies, regulations, standards, 
and guidelines issued by OMB, GSA, and the Department of Commerce;
    c. The terms of the contract should preclude the contractor from 
using, disclosing, copying, or retaining records associated with the 
matching program for the contractor's own use;
    d. Contractor personnel involved in the matching program shall be 
made explicitly aware of their obligations under the Act and of these 
guidelines, agency rules, and any special safeguards in relation to each 
specific match performed.
    e. Any disclosures of records by the agency to the contractor should 
be made pursuant to a ``routine use'' (5 U.S.C. 552a(b)(3)).
    F. Implementation and Oversight. OMB will oversee the implementation 
of these guidelines and shall interpret and advise upon agency proposals 
and actions within their scope, consistent with section 6 of the Privacy 
Act.

[51 FR 2364, Jan. 16, 1986. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57801, Nov. 14, 1991]



PART 311_OSD PRIVACY PROGRAM--Table of Contents




Sec.
311.1 Purpose.
311.2 Applicability and scope.
311.3 Definitions.
311.4 Policy.
311.5 Responsibilities.
311.6 Procedures.
311.7 Information requirements.
311.8 Procedures for exemptions.

    Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).

    Source: 64 FR 22785, Apr. 28, 1999, unless otherwise noted.



Sec. 311.1  Purpose.

    This part updates and implements basic policies and procedures 
outlined in 5 U.S.C. 552a, OMB Circular A-130,\1\ and DoD 5400.11-R \2\ 
and provides guidance and procedures for use in establishing the Privacy 
Program in the Office of the Secretary of Defense (OSD) and those 
organizations assigned to OSD for administrative support.
---------------------------------------------------------------------------

    \1\ Copies may be obtained by contacting EOP Publications, 725 16th 
Street, NW., NEOB, Washington, DC 20503.
    \2\ Copies may be obtained via internet at http://web7.whs.osd.mil/
corres.htm.
---------------------------------------------------------------------------



Sec. 311.2  Applicability and scope.

    This part:
    (a) Applies to the OSD, the Chairman of the Joint Chiefs of Staff, 
Uniformed Services University of the Health Sciences (USUHS) and other 
activities assigned to OSD for administrative support hereafter referred 
to collectively as ``OSD Components.''
    (b) Covers record systems maintained by OSD Components and governs 
the maintenance, access, change, and release of information contained in 
OSD Component record systems, from which information about an individual 
is retrieved by a personal identifier.



Sec. 311.3  Definitions.

    Access. Any individual's review of a record or a copy of a record or 
parts of a system of records.
    Disclosure. The transfer of any personal information from a system 
of records by any means of oral, written, electronic, mechanical, or 
other communication, to any person, private entity, or Government 
agency, other than the subject of the record, the subject's designated 
agent, or the subject's guardian.
    Individual. A living citizen of the United States or an alien 
lawfully admitted to the United States for permanent residence. The 
legal guardian of an individual has the same rights as the individual 
and may act on his or her behalf.
    Individual access. Access to personal information pertaining to the 
individual, by the individual, his or her designated agent or legal 
guardian.

[[Page 874]]

    Maintain. Includes maintenance, collection, use or dissemination.
    Personal information. Information about an individual that is 
intimate or private, as distinguished from information related solely to 
the individual's official functions or public life.



Sec. 311.4  Policy.

    (a) It is DoD policy to safeguard personal information contained in 
any system of records maintained by any DoD Component and to permit any 
individual to know what existing records pertain to him or her in any 
OSD Component covered by this part.
    (b) Each office maintaining records and information about 
individuals shall ensure that their privacy is protected from 
unauthorized disclosure of personal information. These offices shall 
permit individuals to have access to, and to have a copy made of all, or 
any portion of records about them, except as provided in Chapters 3 and 
5, DoD 5400.11-R, and to have an opportunity to request that such 
records be amended as provided by the Privacy Act of 1974 and Chapter 3 
of DoD 5400.11-R. Individuals requesting access to their records shall 
receive concurrent consideration under 5 U.S.C. 552a and the Freedom of 
Information Act, as amended, if appropriate.
    (c) Heads of OSD Components shall maintain any necessary record of a 
personal nature that is individually identifiable in a manner that 
complies with the law and DoD policy. Any information collected must be 
as accurate, relevant, timely, and complete as is reasonable to ensure 
fairness to the individual. Adequate safeguards must be provided to 
prevent misuse or unauthorized release of such information.



Sec. 311.5  Responsibilities.

    (a) The Director of Administration and Management, Office of the 
Secretary of Defense (DA&M, OSD) shall:
    (1) Direct and administer the DoD Privacy Program for OSD 
Components.
    (2) Establish standards and procedures to ensure implementation of 
and compliance with the Privacy Act of 1974, OMB Circular No. A-130, and 
DoD 5400.11-R.
    (3) Designate the Director for Freedom of Information and Security 
Review as the point of contact for individuals requesting information of 
access to records and copies about themselves.
    (4) Serve as the appellate authority within OSD when a requester 
appeals a denial for access to records under the Privacy Act.
    (5) Serve as the appellate authority within OSD when a requester 
appeals a denial for amendment of a record or initiates legal action to 
correct a record.
    (6) Evaluate and decide, in coordination with The General Counsel of 
the Department of Defense (GC, DoD), appeals resulting from denials of 
access or amendments to records by the OSD Components.
    (7) Designate the Directives and Records Division, Correspondence 
and Directives Directorate, Washington Headquarters Services (WHS) as 
the office responsible for all aspects of the Privacy Act, except that 
portion about receiving and acting on public requests for personal 
records. As such, the Directives and Records Division shall:
    (i) Exercise oversight and administrative control of the Privacy Act 
Program in OSD and those organizations assigned to OSD for 
administrative support.
    (ii) Provide guidance and training to organizational entities as 
required by 5 U.S.C. 552a and OMB Circular A-130. Periodic training will 
be provided to public affairs officers and others who may be expected to 
deal with the news media or the public.
    (iii) Collect and consolidate data from OSD Components, and submit 
an annual report to the Defense Privacy Office, as required by 5 U.S.C. 
552a, OMB Circular A-130, and DoD 5400.11-R.
    (iv) Coordinate and consolidate information for reporting all record 
systems, as well as changes to approved systems, to the OMB, the 
Congress, and the Federal Register, as required by 5 U.S.C. 552a, OMB 
Circular E A-130, and DoD 5400.11-R.
    (v) Collect information from OSD Components, and prepare 
consolidated reports required by 5 U.S.C. 552a and DoD 5400.11-R.
    (b) The Director for Freedom of Information and Security Review 
shall:
    (1) Forward requests for information or access to records to the 
appropriate

[[Page 875]]

OSD Component having primary responsibility for any pertinent system of 
records under 5 U.S.C. 552a, or to OSD Components, under the Freedom of 
Information Act, as amended.
    (2) Maintain deadlines to ensure that responses are made within the 
time limits prescribed in DoD 5400.7-R,\3\ DoD Instruction 5400.10,\4\ 
and this part.
---------------------------------------------------------------------------

    \3\ See footnote 2 to Sec. 311.1.
    \4\ See footnote 2 to Sec. 311.1.
---------------------------------------------------------------------------

    (3) Collect fees charged and assessed for reproducing requested 
materials.
    (4) Refer all matters about amendments of records and general and 
specific exemptions under the 5 U.S.C. 552a to the proper OSD 
Components.
    (c) The General Counsel of the Department of Defense shall:
    (1) Coordinate all OSD final denials of appeals for amending 
records, and review actions to confirm denial of access to records, as 
appropriate.
    (2) Provide advice and assistance to the DA&M, OSD in the discharge 
of appellate and review responsibilities, and to the DFOISR on all 
access matters.
    (3) Provide advice and assistance to OSD Components on legal matters 
pertaining to the Privacy Act of 1974.
    (d) The Heads of the OSD Components shall:
    (1) Designate an individual as the point of contact for Privacy Act 
matters; designate an official to deny initial requests for access to an 
individual's records or changes to records; and advise both DA&M, OSD 
and DFOISR of names of officials so designated.
    (2) Report any new record system, or changes to an existing system, 
to the Chief, Directives and Records Division, WHS, at least 90 days 
before the intended use of the system.
    (3) Review all contracts that provide for maintaining records 
systems, by or on behalf of his or her office, to ensure within his or 
her authority, that language is included that provides that such systems 
shall be maintained in a manner consistent with 5 U.S.C. 552a.
    (4) Revise procurement guidance to ensure that any contract 
providing for the maintenance of a records system, by or on behalf of 
his or her office, includes language that ensures that such system shall 
be maintained in accordance with 5 U.S.C. 552a.
    (5) Revise computer and telecommunications procurement policies to 
ensure that agencies review all proposed contracts for equipment and 
services to comply with 5 U.S.C. 552a.
    (6) Coordinate with Automatic Data Processing (ADP) and word 
processing managers providing services to ensure that an adequate risk 
analysis is conducted to comply with DoD 5400.11-R.
    (7) Review all Directives that require forms or other methods used 
to collect information about individuals to ensure that they are in 
compliance with 5 U.S.C. 552a.
    (8) Establish administrative systems in OSD Component organizations 
to comply with the procedures listed in this part and DoD 5400.11-R.
    (9) Coordinate with the GC, DoD on all proposed denials of access to 
records.
    (10) Provide justification to the DFOISR when access to a record is 
denied in whole or in part.
    (11) Provide the record to the DFOISR when the initial denial of a 
request for access to such record has been appealed by the requester, or 
at the time of initial denial when appeal seems likely.
    (12) Maintain an accurate account of the actions resulting in a 
denial for access to a record or for the correction of a record. This 
account should be maintained so that it can be readily certified as the 
complete record of proceedings if litigation occurs.
    (13) Ensure that all personnel who either have access to the system 
of records, or who are engaged in developing or supervising procedures 
for handling records in the system, are aware of their responsibilities 
for protecting personal information as established in the Privacy Act 
and DoD 5400.11-R.
    (14) Forward all requests for access to records received directly 
from an individual to the DFOISR for appropriate suspense control and 
recording.
    (15) Provide DFOISR with a copy of the requested record when the 
request is granted.
    (e) The requester who desires to submit a request is responsible 
for:
    (1) Determining whether to submit the request in writing or in 
person. A requester who seeks access to records

[[Page 876]]

pertaining to himself or herself which are filed by his or her name or 
personal identifier:
    (i) May make such a request in person to the custodian of the 
records. If the requester is not satisfied with the response, however, 
in order to invoke any provision of 5 U.S.C. 552a, DoD 5400.11-R, or 
this part, the requester must file a request in writing as provided in 
Sec. 311.6(b)(10). The requester must provide proof of identify by 
showing drivers license or similar credentials.
    (ii) Describing the record sought, and providing sufficient 
information to enable the material to be located (e.g., identification 
of system of records, approximate date it was initiated, originating 
organization, and type of document).
    (iii) Complying with procedures provided in DoD 5400.11-R for 
inspecting and/or obtaining copies of requested records.
    (iv) Submitting a written request to amend the record to the system 
manager or to the office designated in the system notice.

[64 FR 22785, Apr. 28, 1999, as amended at 66 FR 41780, Aug. 9, 2001]



Sec. 311.6  Procedures.

    (a) Publication of notice in the Federal Register. (1) A notice 
shall be published in the Federal Register of any record system meeting 
the definition of a system of records in DoD 5400.11-R.
    (2) Regarding new or revised records systems, each OSD Component 
shall provide the Chief, Directives and Records Division with 90 days 
advance notice of any anticipated new or revised system of records. This 
material shall be submitted to the OMB and to Congress at least 60 days 
before use and to the Federal Register at least 30 days before being put 
into use, to provide an opportunity for interested persons to submit 
written data, views, or arguments to the OSD Components. Instructions on 
content and preparation are outlined in DoD 5400.11-R.
    (b) Access to information on records systems. (1) Upon request, and 
as provided by the Privacy Act, records shall be disclosed only to the 
individual they pertain to and under whose individual name or identifier 
they are filed, unless exempted by provisions stated in DoD 5400.11-R.
    (2) There is not requirement under 5 U.S.C. 552a that a record be 
created or that an individual be given access to records that are not in 
a group of records that meet this definition of a system of records in 5 
U.S.C. 552a.
    (3) Granting access to a record containing personal information 
shall not be conditioned upon any requirement that the individual state 
a reason or otherwise justify the need to gain access.
    (4) No verification of identity shall be required of an individual 
seeking access to records that are otherwise available to the public.
    (5) Individuals shall not be denied access to a record in a system 
of records about themselves because those records are exempted from 
disclosure under DoD 5400.7-R. Individuals may only be denied access to 
a record in a system of records about themselves when those records are 
exempted from the access provisions of the Privacy Act under DoD 
5400.11-R, Chapter 5.
    (6) Individuals shall not be denied access to their records for 
refusing to disclose their Social Security Numbers (SSNs), unless 
disclosure of the SSN is required by statute, by regulation adopted 
before January 1, 1975, or if the record's filing identifier and only 
means of retrieval is by SSN.
    (7) Individuals may request access to their records, in person or by 
mail, in accordance with the procedures outlined in paragraph (b)(8) of 
this section.
    (8) Information necessary to identify a record is: the individual's 
name, date of birth, place of birth, identification of the records 
system as listed in the Federal Register, or sufficient information to 
identify the type of records being sought, and the approximate date the 
records might have been created. Any individual making a request for 
access to records in person shall come to the Directorate for Freedom of 
Information and Security Review (DFOISR), Room 2C757, Pentagon, 
Washington, DC 20301-1155; and shall provide personal identification 
acceptable to the Director, DFOISR, to verify the individual's identity 
(e.g., driver's license, other licenses, permits, or

[[Page 877]]

passes used for routine identification purposes).
    (9) If an individual wishes to be accompanied by a third party when 
seeking access to records or wishes to have the record released directly 
to a third party, the individual may be required to furnish a signed 
access authorization granting the third party access.
    (10) Any individual submitting a request by mail for access to 
information shall address such request to the Directorate for Freedom of 
Information and Security Review, Pentagon, Room 2C757, Washington, DC 
20301-1155. To verify the identity of the individual, the request shall 
include either a signed notarized statement or an unsworn declaration in 
the format specified by 28 U.S.C. 1746.
    (11) The following procedures shall apply to requests for access to 
records or information complied for law enforcement purposes:
    (i) Individuals requesting access to records or information about 
themselves and complied for law enforcement purposes are processed under 
DoD 5400.11-R and DoD 5400.7-R to give them the greater degree of 
access.
    (ii) Individual requests for access to records or information about 
themselves and compiled for law enforcement purposes (and in the custody 
of law enforcement activities) that have been incorporated into the 
records system, exempted from the access provisions of 5 U.S.C. 552a, 
will be processed in accordance with subsection C1.5.13 and Chapter 5, 
DoD 5400.7-R. Individuals shall not be denied access to records solely 
because they are in the exempt system, but they will have the same 
access that they would receive under DoD 5400.7-R. (Also see subsection 
A.10., Chapter 3, DoD 5400.11-R).)
    (iii) Requests by the individuals for access to records or 
information about themselves and compiled for law enforcement purposes 
that are in records systems exempted from access provisions will be 
processed under subsection C.1., Chapter 5 of DoD 5400.11-R or DoD 
5400.7-R, depending upon which regulation gives the greater degree of 
access. (See also subsection A. 10., Chapter 3, DoD 5400.1-R)
    (iv) Individual requests for access to records or information about 
themselves and complied for law enforcement purposes exempted from 
access under Section B, Chapter 5 of DoD 54.11-R, that are temporarily 
in the hands of a non-law enforcement element for adjudicative or 
personnal actions, shall be referred to the originating agency. The 
requester will be informed in writing of these referrals.
    (12) The following procedures shall apply to requests for illegible, 
incomplete, or partially exempt records:
    (i) An individual shall not be denied access to a record or a copy 
of a record solely because the physical condition or format of the 
record does not make it readily available (e.g., deteriorated state or 
on magnetic tape). The document will be prepared as an extract, or it 
will be exactly recopied.
    (ii) If a portion of the record contains information that is exempt 
from access, an extract or summary containing all of the information in 
the record that is releasable shall be prepared.
    (iii) When the physical condition to the record makes it necessary 
to prepare an extract for release, the extract shall be prepared so that 
the requester will understand it.
    (iv) The requester shall be informed of all deletions or changes to 
records.
    (13) Medical records shall be disclosed to the individual they 
pertain to, unless a determination is made in consultation with a 
medical doctor, that the disclosure could have adverse effects on the 
individual's physical or mental health. Such information may be 
transmitted to a medical doctor named by the individual concerned. If 
the named medical doctor declines to provide the record to the 
individual, the OSD Components shall take positive action to ensure that 
the requested records are provided the individual.
    (14) The individual may be charged reproduction fees for copies or 
records as outlined in DoD 5400.11-R.
    (c) Requested to amend personal information in records systems and 
disputes. (1) The Head of an OSD Component, or the designated official, 
shall allow individuals to request amendment to their records to the 
extent that such

[[Page 878]]

records are not accurate, relevant, timely, or complete. Requests should 
be as brief and as simple as possible and should contain, as a minimum, 
identifying information to locate the record, as description of the 
items to be amended, and the reason for a change. A request shall not be 
rejected nor required to be resubmitted unless additional information is 
essential to process the request. Requesters shall be required to 
provide verification of their identify as stated in paragraph (b)(8) of 
this section, to ensure that they are seeking to amend records about 
themselves, and not, inadvertently or intentially, the records of 
others.
    (2) The appropriate system manager shall mail a written 
acknowledgement to an individual's request to amend a record within 10 
days after receipt, excluding Saturdays, Sundays, and legal public 
holidays. Such acknowledgement shall identify the request and may, if 
necessary, request any additional information needed to make a 
determination. No acknowledgment is necessary if the request can be 
reviewed, processed, and if the individual can be notified of compliance 
or denial within the 10-day period. Whenever practical, the decision 
shall be made within 30 working days. For requests presented in person, 
written acknowledgment may be provided at the time the request is 
presented.
    (3) The Head of an OSD Component, or designated official, shall 
promptly take one of the following actions on requests to amend the 
records:
    (i) If the OSD Component official agrees with any portion or all of 
an individual's request, he or she will proceed to amend the records in 
accordance with existing statutes, requlations, or administrative 
procedures, and inform the requester of the action taken. The OSD 
Component official shall also notify all previous holders of the record 
that the amendment has been made, and shall explain the substance of the 
correction.
    (ii) If the OSD Component official disagrees with all or any portion 
of a request, the individual shall be informed promptly of the refusal 
to amend a record, the reason for the refusal, and the procedure 
established by OSD for an appeal as outlined in paragraph (c)(6) of this 
section.
    (iii) If the request for an amendment pertains to a record 
controlled and maintained by another Federal Agency, the request shall 
be referred to the appropriate Agency, and the requester advised of 
this:
    (4) The following procedures shall be used when reviewing records 
under dispute:
    (i) In response to a request for an amendment to records, officials 
shall determine whether the requester has adequately supported their 
claim that the record is inaccurate, irrelevant, untimely, or 
incomplete.
    (ii) The Head of an OSD Component, or designated official, shall 
limit the review of a record of those items of information that clearly 
bear on any determination to amend the records and shall ensure that all 
those elements are present before determination is made.
    (5) If the Head of an OSD Component, or designated official, after 
an initial review of a request to amend a record, disagrees with all or 
any portion of a record, he or she shall:
    (i) Advise the individual of the denial and the reason for it.
    (ii) Inform the individual that he or she may appeal the denial.
    (iii) Describe the procedures for appealing the denial including the 
name and address of the official to whom the appeal should be directed. 
The procedures should be as brief and simple as possible.
    (iv) Furnish a copy of the justification of any denial to amend a 
record to the DA&M, OSD.
    (6) If an individual disagrees with the initial OSD determination, 
he or she may file an appeal. The request should be sent to the Director 
of Administration and Management, Office of the Secretary of Defense 
(DA&M, OSD), 1950 Defense Pentagon, Washington, D.C. 20301-1950, if the 
record is created and maintained by an OSD Component.
    (7) If, after review, the DA&M, OSD further refuses to amend the 
record as requested, he shall advise the individual:
    (i) Of the refusal and the reason and authority for the denial.

[[Page 879]]

    (ii) Of his or her right to file a statement of the reason for 
disagreeing with the DA&M's decision.
    (iii) Of the procedures for filing a statement of disagreements.
    (iv) That the statement filed shall be made available to anyone the 
record is dislosed to, together with a brief statement, at the 
discretion of the OSD Component, summarizing its reasons for refusing to 
amend the records.
    (v) That prior recipients of copies of disputed records by provided 
by a copy of any statement of dispute to the extent that an accounting 
of disclosure is maintained.
    (vi) Of his or her right to seek judicial review of the DA&M's 
refusal to amend a record.
    (8) If, after the review, the DA&M, OSD, determines that the record 
should be amended in accordance with the individual's request, the OSD 
Component shall amend the record, advise the individual, and inform 
previous recipients where an accounting of disclosure has been 
maintained.
    (9) All appeals should be processed within 30 days (excluding 
Saturdays, Sundays, and legal public holidays) after receipt by the 
proper office. If the DA&M determines that a fair and equitable review 
cannot be made within that time, the individual shall be informed in 
writing of the reasons for the delay and of the approximate date the 
review is expected to be completed.
    (d) Disclosure of disputed information. (1) If the DA&M, OSD, has 
refused to amend a record and the individual has filed a statement under 
paragraph (c)(7) of this section, the OSD Component shall clearly 
annotate the disputed record so that it is apparent to any person to 
whom the record is disclosed that a statement has been filed. Where 
feasible, the notation itself shall be integral to the record. Where an 
accounting of a disclosure has been made, the OSD Component shall advise 
previous recipients that the record has been disputed and shall provide 
a copy of the individual's statement.
    (i) This statement shall be maintained to permit ready retrieval 
whenever the disputed portion of the record is to be disclosed.
    (ii) When information that is the subject of a statement of dispute 
is subsequently disclosed, the OSD Component's designated official shall 
note which information is disputed and provide a copy of the 
individual's statement.
    (2) The OSD Component shall include a brief summary of its reasons 
for not making a correction when disclosing disputed information. Such 
statement shall normally be limited to the reasons given to the 
individual for not amending the record.
    (3) Copies of the OSD Component's summary will be treated as part of 
the individual's record; however, it will not be subject to the 
amendment procedure outlined in paragraph (c)(3)(iii) of this section.
    (e) Penalties--(1) Civil action. (i) An individual may file a civil 
suit against the United States and may recover damages, for:
    (A) Refusal to amend a record.
    (B) Improper denial of the access to a record.
    (C) Failure to maintain an accurate, relevant, timely, and complete 
record that is used to make determinations adverse to the individual.
    (ii) An individual may also file a suit against the United States 
for failure to implement a provision of the Privacy Act when such 
failure leads to an adverse determination.
    (iii) If the individual's suit is upheld, the court may direct the 
United States to pay the court costs and attorney's fees.
    (2) Criminal action. (i) Criminal penalties may be imposed against 
an OSD officer or employee for certain offenses listed in section (i) of 
the Privacy Act, as follows: willful unauthorized disclosure of 
protected information in the records; failure to publish a notice of the 
existence of a record system in the Federal Register; requesting or 
gaining access to the individual's record under false pretenses.
    (ii) An OSD officer or employee may be fine up to $5,000 for a 
violation as outlined in paragraph (e)(2)(i) of this section.
    (3) Litigation status sheet. Whenever a complaint citing 5 U.S.C. 
552a is filed in a U.S. District Court against the Department of 
Defense, a DoD component, or any DoD employee, the responsible system 
manager shall promptly

[[Page 880]]

notify the Defense Privacy Office. The litigation status sheet in DoD 
5400.II-R provides a standard format for this notification. (The initial 
litigation status sheet shall, as a minimum, provide the information 
required by items 1. through 6.) A revised litigation status sheet shall 
be provided at each stage of the litigation. When a court renders a 
formal opinion or judgment, copies of the judgment or opinion shall be 
provided to the Defense Privacy Office with the litigation status sheet 
reporting that judgment or opinion.
    (f) Computer matching programs. Paragraph B of Chapter 11 of DoD 
5400.11-R prescribes that all requests for participation in a matching 
program (either as a matching agency or a source agency) be submitted to 
the Defense Privacy Office for review and compliance. OSD Components 
shall submit these request through the Directives and Records Division.

[64 FR 22785, Apr. 28, 1999; 64 FR 27694, May 21, 1999]



Sec. 311.7  Information requirements.

    The Defense Privacy Office shall establish requirements and 
deadlines for DoD privacy reports. These reports shall be licensed in 
accordance with DoD Directive 8910.1.\5\
---------------------------------------------------------------------------

    \5\ See footnote 2 to Sec. 311.1.
---------------------------------------------------------------------------



Sec. 311.8  Procedures for exemptions.

    (a) General information. The Secretary of Defense designates those 
Office of the Secretary of Defense (OSD) systems of records which will 
be exempt from certain provisions of the Privacy Act. There are two 
types of exemptions, general and specific. The general exemption 
authorizes the exemption of a system of records from all but a few 
requirements of the Act. The specific exemption authorizes exemption of 
a system of records or portion thereof, from only a few specific 
requirements. If an OSD Component originates a new system of records for 
which it proposes an exemption, or if it proposes an additional or new 
exemption for an existing system of records, it shall submit the 
recommended exemption with the records system notice as outlined in 
Sec. 311.6. No exemption of a system of records shall be considered 
automatic for all records in the system. The systems manager shall 
review each requested record and apply the exemptions only when this 
will serve significant and legitimate Government purpose.
    (b) General exemptions. The general exemption provided by 5 U.S.C. 
552a(j)(2) may be invoked for protection of systems of records 
maintained by law enforcement activities. Certain functional records of 
such activities are not subject to access provisions of the Privacy Act 
of 1974. Records identifying criminal offenders and alleged offenders 
consisting of identifying data and notations of arrests, the type and 
disposition of criminal charges, sentencing, confinement, release, 
parole, and probation status of individuals are protected from 
disclosure. Other records and reports compiled during criminal 
investigations, as well as any other records developed at any stage of 
the criminal law enforcement process from arrest to indictment through 
the final release from parole supervision are excluded from release.
    (1) System identifier and name: DWHS P42.0, DPS Incident Reporting 
and Investigations Case Files.
    (i) Exemption. Portions of this system that fall within 5 U.S.C. 
552a(j)(2) are exempt from the following provisions of 5 U.S.C. 552a, 
Sections (c) (3) and (4); (d)(1) through (d)(5); (e)(1) through (e)(3); 
(e)(5); (f)(1) through (f)(5); (g)(1) through (g)(5); and (h) of the 
Act.
    (ii) Authority: 5 U.S.C. 552a(j)(2).
    (iii) Reason: The Defense Protective Service is the law enforcement 
body for the jurisdiction of the Pentagon and immediate environs. The 
nature of certain records created and maintained by the DPS requires 
exemption from access provisions of the Privacy Act of 1974. The general 
exemption, 5 U.S.C. 552a(j)(2), is invoked to protect ongoing 
investigations and to protect from access criminal investigation 
information contained in this record system, so as not to jeopardize any 
subsequent judicial or administrative process taken as a result of 
information contained in the file.
    (2) System identifier and name: JS006.CND, Department of Defense 
Counternarcotics C4I System.

[[Page 881]]

    (i) Exemption: Portions of this system that fall within 5 U.S.C. 
552a(j)(2) are exempt from the following provisions of 5 U.S.C. 552a, 
section (c) (3) and (4); (d)(1) through (d)(5); (e)(1) through (e)(3); 
(e)(4)(G) and (e)(4)(H); (e)(5); (f)(1) through (f)(5); (g)(1) through 
(g)(5) of the Act.
    (ii) Authority: 5 U.S.C. 552a(j)(2).
    (iii) Reason: From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede USSOUTHCOM's criminal law enforcement.
    (iv) For subsections (c)(4) and (d) because notification would alert 
a subject to the fact that an investigation of that individual is taking 
place, and might weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy.
    (v) From subsections (e)(4) (G) and (H) because this system of 
records is exempt from the access provisions of subsection (d) pursuant 
to subsection (j).
    (vi) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going criminal 
investigation. The conduct of a successful investigation leading to the 
indictment of a criminal offender precludes the applicability of 
established agency rules relating to verification of record, disclosure 
of the record to that individual, and record amendment procedures for 
this record system.
    (vii) For compatibility with the exemption claimed from subsection 
(f), the civil remedies provisions of subsection (g) must be suspended 
for this record system. Because of the nature of criminal 
investigations, standards of accuracy, relevance, timeliness and 
completeness cannot apply to this record system. Information gathered in 
criminal investigations is often fragmentary and leads relating to an 
individual in the context of one investigation may instead pertain to a 
second investigation.
    (viii) From subsection (e)(1) because the nature of the criminal 
investigative function creates unique problems in prescribing a specific 
parameter in a particular case with respect to what information is 
relevant or necessary. Also, due to USSOUTHCOM's close liaison and 
working relationships with the other Federal, as well as state, local 
and foreign country law enforcement agencies, information may be 
received which may relate to a case under the investigative jurisdiction 
of another agency. The maintenance of this information may be necessary 
to provide leads for appropriate law enforcement purposes and to 
establish patterns of activity which may relate to the jurisdiction of 
other cooperating agencies.
    (ix) From subsection (e)(2) because collecting information to the 
greatest extent possible directly from the subject individual may or may 
not be practicable in a criminal investigation. The individual may 
choose not to provide information and the law enforcement process will 
rely upon significant information about the subject from witnesses and 
informants.
    (x) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal investigation. 
The effect would be somewhat inimical to established investigative 
methods and techniques.
    (xi) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the criminal investigative process. 
It is the nature of criminal law enforcement for investigations to 
uncover the commission of illegal acts at diverse stages. It is 
frequently impossible to determine initially what information is 
accurate, relevant, timely, and least of all complete. With the passage 
of time, seemingly irrelevant or untimely information may acquire new 
significant as

[[Page 882]]

further investigation brings new details to light.
    (xii) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to criminal law enforcement 
by revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (c) Specific exemptions. All systems of records maintained by any 
OSD Component shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to subsection (k)(1) of that section to the extent that the 
system contains any information properly classified under Executive 
Order 11265, `National Security Information,' dated June 28, 552a(d) 
pursuant to subsection (k)(1) of that section to the extent that the 
system contains any information properly classified under E.O. 11265, 
`National Security Information,' dated June 28, 1979, as amended, and 
required by the Executive Order to be kept classified in the interest of 
national defense or foreign policy. This exemption, which may be 
applicable to parts of all systems of records, is necessary because 
certain record systems not otherwise specifically designated for 
exemptions may contain isolated information which has been properly 
classified. The Secretary of Defense has designated the following OSD 
system of records described below specifically exempted from the 
appropriate provisions of the Privacy Act pursuant to the designated 
authority contained therein:
    (1) System identifier and name: DGC 16, Political Appointment 
Vetting Files.
    (i) Exemption. Portions of this system of records that fall within 
the provisions of 5 U.S.C. 552a(k)(5) may be exempt from the following 
subsections (d)(1) through (d)(5).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. From (d)(1) through (d)(5) because the agency is 
required to protect the confidentiality of sources who furnished 
information to the Government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it. This exemption is limited to disclosures that would reveal the 
identity of a confidential source.
    (2) System identifier and name: DWHS P28, The Office of the 
Secretary of Defense Clearance File.
    (i) Exemption. This system of records is exempt from subsections 
(c)(3) and (d) of 5 U.S.C. 552a, which would require the disclosure of 
investigatory material compiled solely for the purpose of determining 
access to classified information but only to the extent that disclosure 
of such material would reveal the identity of a source who furnished 
information to the Government under an expressed promise that the 
identity of the source would be held in confidence or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence. A determination will be made at the 
time of the request for a record concerning the specific information 
which would reveal the identity of the source.
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. This exemption is required to protect the 
confidentiality of the sources of information compiled for the purpose 
of determining access to classified information. This confidentiality 
helps maintain the Government's continued access to information from 
persons who would otherwise refuse to give it.
    (3) System identifier and name: DGC 04, Industrial Personnel 
Security Clearance Case Files.
    (i) Exemption. All portions of this system which fall under 5 U.S.C. 
552a(k)(5) are exempt from the following provisions of Title 5 U.S.C. 
552a: (c)(3); (d).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. This system of records is exempt from subsections 
(c)(3) and (d) of section 552a of 5 U.S.C. which would require the 
disclosure of investigatory material compiled solely for the purpose of 
determining access to classified information, but only to the extent 
that the disclosure of such material would reveal the identity of a 
source who furnished information to the Government under an expressed 
promise that the identity of the source would be held in confidence, or 
prior to September 27, 1975, under an implied

[[Page 883]]

promise that the identity of the source would be held in confidence. A 
determination will be made at the time of the request for a record 
concerning whether specific information would reveal the identity of a 
source. This exemption is required in order to protect the 
confidentiality of the sources of information compiled for the purpose 
of determining access to classified information. This confidentiality 
helps maintain the Government's continued access to information from 
persons who would otherwise refuse to give it.
    (4) System identifier and name: DWHS P32, Standards of Conduct 
Inquiry File.
    (i) Exemption. This system of records is exempted from subsections 
(c)(3) and (d) of 5 U.S.C. 552a, which would require the disclosure of: 
Investigatory material compiled for law enforcement purposes; or 
investigatory material compiled solely for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, military service, or Federal contracts, but only to the 
extent that the disclosure of such material would reveal the identity of 
a source who furnished information to the Government under an express 
promise or, prior to September 27, 1975, under an implied promise that 
the identity of the source would be held in confidence. If any 
individual is denied any right, privilege, or benefit that he would 
otherwise be entitled by Federal law, or otherwise be eligible, as a 
result of the maintenance of investigatory material compiled for law 
enforcement purposes, the material shall be provided to that individual, 
except to the extent that its disclosure would reveal the identity of a 
source who furnished information to the Government under an express 
promise or, prior to September 27, 1975, under an implied promise that 
the identity of the source would be held in confidence. At the time of 
the request for a record, a determination will be made concerning 
whether a right, privilege, or benefit is denied or specific information 
would reveal the identity of a source.
    (ii) Authority. 5 U.S.C. 552a(k) (2) and (5).
    (iii) Reasons. These exemptions are necessary to protect the 
confidentiality of the records compiled for the purpose of: enforcement 
of the conflict of interest statutes by the Department of Defense 
Standards of Conduct Counselor, General Counsel, or their designees; and 
determining suitability, eligibility or qualifications for Federal 
civilian employment, military service, or Federal contracts of those 
alleged to have violated or caused others to violate the Standards of 
Conduct regulations of the Department of Defense.
    (5) System identifier and name: DUSDP 02, Special Personnel Security 
Cases.
    (i) Exemption: All portions of this system which fall under 5 U.S.C. 
552a(k)(5) are exempt from the following provisions of 5 U.S.C. 552a: 
(c)(3); (d).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: This system of records is exempt from subsections 
(c)(3) and (d) of 5 U.S.C. 552a which would require the disclosure of 
investigatory material compiled solely for the purpose of determining 
access to classified information, but only to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an expressed promise that 
the identity of the source would be held in confidence or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence. A determination will be made at the 
time of the request for a record concerning whether specific information 
would reveal the identity of a source. This exemption is required in 
order to protect the confidentiality of the sources of information 
compiled for the purpose of determining access to classified 
information. This confidentiality helps maintain the Government's 
continued access to information from persons who would otherwise refuse 
to give it.
    (6) System identifier and name: DODDS 02.0, Educator Application 
Files.
    (i) Exemption. All portions of this system which fall within 5 
U.S.C. 552a(k)(5) may be exempt from the following provisions of 5 
U.S.C. 552a: (c)(3); (d).
    (ii) Authority. 5 U.S.C. 552a(k)(5).
    (iii) Reasons. It is imperative that the confidential nature of 
evaluation and investigatory material on teacher application files 
furnished the Department of Defense Dependent Schools

[[Page 884]]

(DoDDS) under promises of confidentiality be exempt from disclosure to 
the individual to insure the candid presentation of information 
necessary to make determinations involving applicants suitability for 
DoDDS teaching positions.
    (7) System identifier and name: DGC 20, DoD Presidential Appointee 
Vetting File.
    (i) Exemption: Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source. Portions of this system of records 
that may be exempt pursuant to 5 U.S.C. 552a(k)(5) are subsections 
(d)(1) through (d)(5).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reason: From (d)(1) through (d)(5) because the agency is 
required to protect the confidentiality of sources who furnished 
information to the government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it.
    (8) System identifier and name: DWHS P29, Personnel Security 
Adjudications File.
    (i) Exemption: Portions of this system of records that fall within 
the provisions of 5 U.S.C. 552a(k)(5) may be exempt from the following 
subsections (d)(1) through (d)(5).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons. From (d)(1) through (d)(5) because the agency is 
required to protect the confidentiality of sources who furnished 
information to the Government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it. This exemption is limited to disclosures that would reveal the 
identity of a confidential source. At the time of the request for a 
record, a determination will be made concerning whether a right, 
privilege, or benefit is denied or specific information would reveal the 
identity of a source.
    (9) System identifier and name: JS004SECDIV, Joint Staff Security 
Clearance Files.
    (i) Exemption: Portions of this system of records are exempt 
pursuant to the provisions of 5 U.S.C. 552a(k)(5) from subsections 5 
U.S.C. 552a(d)(1) through (d)(5).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: From subsections (d)(1) through (d)(5) because the 
agency is required to protect the confidentiality of sources who 
furnished information to the government under an expressed promise of 
confidentiality or, prior to September 27, 1975, under an implied 
promise that the identity of the source would be held in confidence. 
This confidentiality is needed to maintain the Government's continued 
access to information from persons who otherwise might refuse to give 
it. This exemption is limited to disclosures that would reveal the 
identity of a confidential source. At the time of the request for a 
record, a determination will be made concerning whether a right, 
privilege, or benefit is denied or specific information would reveal the 
identity of a source.
    (10) System identifier and name: DFMP 26, Vietnamese Commando 
Compensation Files.
    (i) Exemption: Information classified under E.O. 12958, as 
implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 
552a(k)(1).
    (ii) Authority: 5 U.S.C. 552a(k)(1).
    (iii) Reasons: From subsection 5 U.S.C. 552a(d) because granting 
access to information that is properly classified pursuant to E.O. 
12958, as implemented by DoD 5200.1-R, may cause damage to the national 
security.
    (11) System identifier and name: DUSP 11, POW/Missing Personnel 
Office Files.
    (i) Exemption: Information classified under E.O. 12958, as 
implemented by DoD 5200.1-R, may be exempt pursuant to 5 U.S.C. 
552a(k)(1).

[[Page 885]]

    (ii) Authority: 5 U.S.C. 552a(k)(1).
    (iii) Reasons: From subsection 5 U.S.C. 552a(d) because granting 
access to information that is properly classified pursuant to E.O. 
12958, as implemented by DoD 5200.1-R, may cause damage to the national 
security.
    (12) System identifier and name: DFOISR 05, Freedom of Information 
Act Case Files.
    (i) Exemption: During the processing of a Freedom of Information Act 
request, exempt materials from other systems of records may in turn 
become part of the case record in this system. To the extent that copies 
of exempt records from those `other' systems of records are entered into 
this system, the Office of the Secretary of Defense claims the same 
exemptions for the records from those `other' systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.
    (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Reasons: Records are only exempt from pertinent provisions of 
5 U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (13) System identifier and name: DFOISR 10, Privacy Act Case Files.
    (i) Exemption: During the processing of a Privacy Act request (which 
may include access requests, amendment requests, and requests for review 
for initial denials of such requests), exempt materials from other 
systems of records may in turn become part of the case record in this 
system. To the extent that copies of exempt records from those `other' 
systems of records are entered into this system, the Office of the 
Secretary of Defense hereby claims the same exemptions for the records 
from those `other' systems that are entered into this system, as claimed 
for the original primary system of which they are a part.
    (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent such provisions have been identified and an exemption 
claimed for the original record and the purposes underlying the 
exemption for the original record still pertain to the record which is 
now contained in this system of records. In general, the exemptions were 
claimed in order to protect properly classified information relating to 
national defense and foreign policy, to avoid interference during the 
conduct of criminal, civil, or administrative actions or investigations, 
to ensure protective services provided the President and others are not 
compromised, to protect the identity of confidential sources incident to 
Federal employment, military service, contract, and security clearance 
determinations, to preserve the confidentiality and integrity of Federal 
testing materials, and to safeguard evaluation materials used for 
military promotions when furnished by a confidential source. The 
exemption rule for the original records will identify the specific 
reasons why the records are exempt from specific provisions of 5 U.S.C. 
552a.
    (14) System identifier and name: DHRA 02, PERSEREC Research Files.
    (i) Exemption: (A) Investigative material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal

[[Page 886]]

contracts, or access to classified information may be exempt pursuant to 
5 U.S.C. 552a(k)(5), but only to the extent that such material would 
reveal the identity of a confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: (A) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential source to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (15) System identifier and name: DCIFA 01, CIFA Operational and 
Analytical Records.
    (i) Exemptions: This system of records is a compilation of 
information from other Department of Defense and U.S. Government systems 
of records. To the extent that copies of exempt records from those 
`other' systems of records are entered into this system, OSD hereby 
claims the same exemptions for the records from those `other' systems 
that are entered into this system, as claimed for the original primary 
system of which they are a part.
    (ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (iii) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent (1) such provisions have been identified and an 
exemption claimed for the original record and (2) the purposes 
underlying the exemption for the original record still pertain to the 
record which is now contained in this system of records. In general, the 
exemptions are claimed in order to protect properly classified 
information relating to national defense and foreign policy, to avoid 
interference during the conduct of criminal, civil, or administrative 
actions or investigations, to ensure protective services provided the 
President and others are not compromised, to protect the identity of 
confidential sources incident to Federal employment, military service, 
contract, and security clearance determinations, and to preserve the 
confidentiality and integrity of Federal evaluation materials. The 
exemption rule for the original records will identify the specific 
reasons why the records are exempt from specific provisions of 5 U.S.C. 
552a.

[65 FR 53168, Sept. 1, 2000, as amended at 66 FR 41780, Aug. 8, 2001; 68 
FR 8722, Feb. 25, 2003; 68 FR 24881, May 9, 2003; 70 FR 34657, June 15, 
2005]

    Effective Date Note: At 70 FR 34657, June 15, 2005, Sec. 311.8 was 
amended by adding paragraph (c)(15), effective July 15, 2005.



PART 312_OFFICE OF THE INSPECTOR GENERAL (OIG) PRIVACY PROGRAM--Table 
of Contents




Sec.
312.1 Purpose.
312.2 Definitions.
312.3 Procedure for requesting information.
312.4 Requirements for identification.
312.5 Access by subject individuals.
312.6 Fees.
312.7 Request for correction or amendment.
312.8 OIG review of request for amendment.
312.9 Appeal of initial amendment decision.
312.10 Disclosure of OIG records to other than subject.
312.11 Penalties.
312.12 Exemptions.

[[Page 887]]

312.13 Ownership of OIG investigative records.
312.14 Referral of records.

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

    Source: 56 FR 51976, Oct. 17, 1991, unless otherwise noted.



Sec. 312.1  Purpose.

    Pursuant to the requirements of the Privacy Act of 1974 (5 U.S.C. 
552a) and 32 CFR part 310--DoD Privacy Program, the following rules of 
procedures are established with respect to access and amendment of 
records maintained by the Office of the Inspector General (OIG) on 
individual subjects of these records.

[68 FR 37969, June 26, 2003]



Sec. 312.2  Definitions.

    (a) All terms used in this part which are defined in 5 U.S.C. 552a 
shall have the same meaning herein.
    (b) As used in this part, the term ``agency'' means the Office of 
the Inspector General (OIG), Department of Defense.



Sec. 312.3  Procedure for requesting information.

    Individuals should submit written inquiries regarding all OIG files 
to the Office of Communications and Congressional Liaison, ATTN: FOIA/PA 
Office, 400 Army Navy Drive, Arlington, VA 22202-4704. Individuals 
making a request in person must provide acceptable picture 
identification, such as a current driver's license.

[68 FR 37969, June 26, 2003]



Sec. 312.4  Requirements for identification.

    Only upon proper identification will any individual be granted 
access to records which pertain to him/her. Identification is required 
both for accurate record identification and to avoid disclosing records 
to unauthorized individuals. Requesters must provide their full name and 
as much information as possible about the record being sought in order 
that a proper search for records can be accomplished. Inclusion of a 
telephone number for the requester is recommended to expedite certain 
matters. Requesters applying in person must provide an identification 
with photograph, such as a driver's license, military identification 
card, building pass, etc.

[59 FR 2746, Jan. 19, 1994]



Sec. 312.5  Access by subject individuals.

    (a) No individual will be allowed access to any information compiled 
or maintained in reasonable anticipation of civil or criminal actions or 
proceedings or otherwise exempt under Sec. 312.12. Requests for pending 
investigations will be denied and the requester instructed to forward 
another request giving adequate time for the investigation to be 
completed. Requesters shall be provided the telephone number so they can 
call and check on the status in order to know when to resubmit the 
request.
    (b) Any individual may authorize the OIG to provide a copy of his/
her records to a third part. This authorization must be in writing, must 
designate the recipient by name, must specify the records or portion to 
be provided to the recipient, and should accompany the initial request 
to the OIG.

[56 FR 51976, Oct. 17, 1991, as amended at 59 FR 2746, Jan. 19, 1994]



Sec. 312.6  Fees.

    Requesters will be charged only for the reproduction of requested 
documents and special postal methods, such as express mail, if 
applicable. There will be no charge for the first copy of a record 
provided to any individual. Thereafter, fees will be computed as set 
forth in appropriate DoD Directives and Regulations.



Sec. 312.7  Request for correction or amendment.

    (a) Requests to correct or amend a file shall be addressed to the 
system manager in which the file is located. The request must reasonably 
describe the record to be amended, the items to be changed as 
specifically as possible, the type of amendment (e.g., deletion, 
correction, amendment), and the reason for amendment. Reasons should 
address at least one of the following categories: Accuracy, relevance, 
timeliness, completeness, fairness. The request should also include 
appropriate

[[Page 888]]

evidence which provide a basis for evaluating the request. Normally all 
documents submitted, to include court orders, should be certified. 
Amendments under this part are limited to correcting factual matters and 
not matters of official judgment or opinions, such as performance 
ratings, promotion potential, and job performance appraisals.
    (b) Requirements of identification as outlined in Sec. 312.4 apply 
to requests to correct or amend a file.
    (c) Incomplete requests shall not be honored, but the requester 
shall be contacted for the additional information needed to process the 
request.
    (d) The amendment process is not intended to permit the alteration 
of evidence presented in the course of judicial or quasi-judicial 
proceedings. Any amendments or changes to these records normally are 
made through the specific procedures established for the amendment of 
such records.
    (e) Nothing in the amendment process is intended or designed to 
permit a collateral attack upon what has already been the subject of a 
judicial or quasi-judicial determination. However, while the individual 
may not attack the accuracy of the judicial or quasi-judicial 
determination, he or she may challenge the accuracy of the recording of 
that action.



Sec. 312.8  OIG review of request for amendment.

    (a) A written acknowledgement of the receipt of a request for 
amendment of a record will be provided to the requester within 20 
working days, unless final action regarding approval or denial will 
constitute acknowledgement.
    (b) Where there is a determination to grant all or a portion of a 
request to amend a record, the record shall be promptly amended and the 
requesting individual notified. Individuals, agencies or DoD components 
shown by disclosure accounting records to have received copies of the 
record, or to whom disclosure has been made, will be notified of the 
amendment by the responsible OIG official.
    (c) Where there is a determination to deny all or a portion of a 
request to amend a record, OIG will promptly advise the requesting 
individual of the specifics of the refusal and the reasons; and inform 
the individual that he/she may request a review of the denial(s) from 
the OIG designated official.

[56 FR 51976, Oct. 17, 1991, as amended at 69 FR 7366, Feb. 17, 2004]



Sec. 312.9  Appeal of initial amendment decision.

    (a) All appeals on an initial amendment decision should be addressed 
to the Office of Communications and Congressional Liaison, ATTN: FOIA/PA 
Office, 400 Army Navy Drive, Arlington, VA 22202-4704. The appeal should 
be concise and should specify the reasons the requester believes that 
the initial amendment action by the OIG was not satisfactory. Upon 
receipt of the appeal, the designated official will review the request 
and make a determination to approve or deny the appeal.
    (b) If the OIG designated official decides to amend the record, the 
requester and all previous recipients of the disputed information will 
be notified of the amendment. If the appeal is denied, the designated 
official will notify the requester of the reason of the denial, of the 
requester's right to file a statement of dispute disagreeing with the 
denial, that such statement of dispute will be retained in the file, 
that the statement will be provided to all future users of the file, and 
that the requester may file suit in a federal district court to contest 
the OIG decision not to amend the record.
    (c) The OIG designated official will respond to all appeals within 
30 working days or will notify the requester of an estimated date of 
completion if the 30 day limit cannot be met.

[56 FR 51976, Oct. 17, 1991, as amended at 68 FR 37969, June 26, 2003]



Sec. 312.10  Disclosure of OIG records to other than subject.

    No record containing personally identifiable information within a 
OIG system of records shall be disclosed by any means to any person or 
agency outside the Department of Defense, except with the written 
consent of the individual subject of the record or as provided for in 
the Act and DoD 5400.11-R (32 CFR part 286a).

[[Page 889]]



Sec. 312.11  Penalties.

    (a) An individual may bring a civil action against the OIG to 
correct or amend the record, or where there is a refusal to comply with 
an individual request or failure to maintain any records with accuracy, 
relevance, timeliness and completeness, so as to guarantee fairness, or 
failure to comply with any other provision of the Privacy Act. The court 
may order correction or amendment of records. The court may enjoin the 
OIG from withholding the records and order the production of the record.
    (b) Where it is determined that the action was willful or 
intentional with respect to 5 U.S.C. 552a(g)(1) (C) or (D), the United 
States shall be liable for the actual damages sustained, but in no case 
less than the sum of $1,000 and the costs of the action with attorney 
fees.
    (c) Criminal penalties may be imposed against an officer or employee 
of the OIG who discloses material, which he/she knows is prohibited from 
disclosure, or who willfully maintains a system of records without 
compliance with the notice requirements.
    (d) Criminal penalties may be imposed against any person who 
knowingly and willfully requests or obtains any record concerning 
another individual from an agency under false pretenses.
    (e) All of these offenses are misdemeanors with a fine not to exceed 
$5,000.



Sec. 312.12  Exemptions.

    (a) Exemption for classified records. Any record in a system of 
records maintained by the Office of the Inspector General which falls 
within the provisions of 5 U.S.C. 552a(k)(1) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I) and (f) to the extent that a record system contains any 
record properly classified under Executive Order 12958 and that the 
record is required to be kept classified in the interest of national 
defense or foreign policy. This specific exemption rule, claimed by the 
Inspector General under authority of 5 U.S.C. 552a(k)(1), is applicable 
to all systems of records maintained, including those individually 
designated for an exemption herein as well as those not otherwise 
specifically designated for an exemption, which may contain isolated 
items of properly classified information
    (b) The Inspector General of the Department of Defense claims an 
exemption for the following record systems under the provisions of 5 
U.S.C. 552a(j) and (k)(1)-(k)(7) from certain indicated subsections of 
the Privacy Act of 1974. The exemptions may be invoked and exercised on 
a case-by-case basis by the Deputy Inspector General for Investigations 
or the Director, Communications and Congressional Liaison Office, and 
the Chief, Freedom of Information/Privacy Act Office, which serve as the 
Systems Program Managers. Exemptions will be exercised only when 
necessary for a specific, significant and legitimate reason connected 
with the purpose of the records system.
    (c) No personal records releasable under the provisions of The 
Freedom of Information Act (5 U.S.C. 552) will be withheld from the 
subject individual based on these exemptions.
    (d) System Identifier: CIG-04
    (1) System name: Case Control System.
    (2) Exemption: Any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 U.S.C. 552a: (c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G), (H), (I), (e)(5), (e)(8), (f), and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons: From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede OIG's criminal law enforcement.
    (5) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation on that individual is 
taking place, and might weaken the on-going investigation, reveal 
investigatory techniques, and place confidential informants in jeopardy.

[[Page 890]]

    (6) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, due to OIG's close liaison and working 
relationships with other Federal, state, local and foreign country law 
enforcement agencies, information may be received which may relate to a 
case under the investigative jurisdiction of another agency. The 
maintenance of this information may be necessary to provide leads for 
appropriate law enforcement purposes and to establish patterns of 
activity which may relate to the jurisdiction of other cooperating 
agencies.
    (7) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (8) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (9) From subsection (e)(4) (G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (10) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (11) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (12) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (13) For comparability with the exemption claimed from subsection 
(f), the civil remedies provisions of subsection (g) must be suspended 
for this record system. Because of the nature of criminal 
investigations, standards of accuracy, relevance, timeliness, and 
completeness cannot apply to this record system. Information gathered in 
an investigation is often fragmentary and leads relating to an 
individual in the context of one investigation may instead pertain to a 
second investigation.
    (e) System Identification: CIG-06.
    (1) System name: Investigative Files.
    (2) Exemption: Any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 U.S.C. 552a (c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4) (G), (H), (I), (e)(5), (e)(8), (f), and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons: From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede OIG's criminal law enforcement.
    (5) From subsection (c)(4) and (d), because notification would alert 
a subject to the fact that an open investigation

[[Page 891]]

on that individual is taking place, and might weaken the on-going 
investigation, reveal investigatory techniques, and place confidential 
informants in jeopardy.
    (6) From subsection (e)(1) because the nature of the criminal and/or 
civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, due to OIG's close liaison and working 
relationships with other Federal, state, local and foreign country law 
enforcement agencies, information may be received which may relate to a 
case under the investigative jurisdiction of another agency. The 
maintenance of this information may be necessary to provide leads for 
appropriate law enforcement purposes and to establish patterns of 
activity which may relate to the jurisdiction of other cooperating 
agencies.
    (7) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (8) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (9) From subsection (e)(4) (G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (10) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (11) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (12) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (13) For comparability with the exemption claimed from subsection 
(f), the civil remedies provisions of subsection (g) must be suspended 
for this record system. Because of the nature of criminal 
investigations, standards of accuracy, relevance, timeliness, and 
completeness cannot apply to this record system. Information gathered in 
an investigation is often fragmentary and leads relating to an 
individual in the context of one investigation may instead pertain to a 
second investigation.
    (f) System identifier: CIG-15.
    (1) System name: Departmental Inquiries Case System.
    (2) Exemption: Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Any portions of this system which fall under the provisions of 5 
U.S.C. 552a(k)(2) may be exempt from the following subsection of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I).

[[Page 892]]

    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: From subsection (c)(3) because disclosures from this 
system could interfere with the just, thorough and timely resolution of 
the compliant or inquiry, and possibly enable individuals to conceal 
their wrongdoing or mislead the course of the investigation by 
concealing, destroying or fabricating evidence or documents.
    (5) From subsection (d) because disclosures from this system could 
interfere with the just thorough and timely resolution of the compliant 
or inquiry, and possibly enable individuals to conceal their wrongdoing 
or mislead the course of the investigation by concealing, destroying or 
fabricating evidence or documents. Disclosures could also subject 
sources and witnesses to harassment or intimidation which jeopardize the 
safety and well-being of themselves and their families.
    (6) From subsection (e)(1) because the nature of the investigation 
function creates unique problems in prescribing specific parameters in a 
particular case as to what information is relevant or necessary. Due to 
close liaison and working relationships with other Federal, state, local 
and foreign country law enforcement agencies, information may be 
received which may relate to a case under the investigative jurisdiction 
of another government agency. It is necessary to maintain this 
information in order to provide leads for appropriate law enforcement 
purposes and to establish patterns of activity which may relate to the 
jurisdiction of other cooperating agencies.
    (7) From subsection (e)(4) (G) through (H) because this system of 
records is exempt from the access provisions of subsection (d).
    (8) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (g) System Identifier: CIG-16.
    (1) System name: DOD Hotline Program Case Files.
    (2) Exemption: Any portions of this system of records which fall 
under the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt 
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons: From subsection (c)(3) because disclosures from this 
system could interfere with the just, thorough and timely resolution of 
the complaint or inquiry, and possibly enable individuals to conceal 
their wrongdoing or mislead the course of the investigation by 
concealing, destroying or fabricating evidence or documents.
    (5) From subsection (d) because disclosures from this system could 
interfere with the just, thorough and timely resolution of the complaint 
or inquiry, and possibly enable individuals to conceal their wrongdoing 
or mislead the course of the investigation by concealing, destroying or 
fabricating evidence or documents. Disclosures could also subject 
sources and witnesses to harassment or intimidation which jeopardize the 
safety and well-being of themselves and their families.
    (6) From subsection (e)(1) because the nature of the investigation 
functions creates unique problems in prescribing specific parameters in 
a particular case as to what information is relevant or necessary. Due 
to close liaison and working relationships with other Federal, state, 
local, and foreign country law enforcement agencies, information may be 
received which may relate to a case under the investigative jurisdiction 
of another government agency. It is necessary to maintain this 
information in order to provide leads for appropriate law enforcement 
purposes and to establish patterns of activity which may relate to the 
jurisdiction of other cooperating agencies.
    (7) From subsection (e)(4)(G) through (H) because this system of 
records is exempt from the access provisions of subsection (d).

[[Page 893]]

    (8) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.
    (h) System Identifier: CIG 01.
    (1) System name: Privacy Act and Freedom of Information Act Case 
Files.
    (2) Exemption: During the processing of a Freedom of Information Act 
(FOIA) and Privacy Act (PA) request, exempt materials from other systems 
of records may in turn become part of the case record in this system. To 
the extent that copies of exempt records from those ``other'' systems of 
records are entered into this system, the Inspector General, DoD, claims 
the same exemptions for the records from those ``other'' systems that 
are entered into this system, as claimed for the original primary system 
of which they are a part.
    (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (4) Reasons: Records are only exempt from pertinent provisions of 5 
U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the original records will identify the 
specific reasons why the records are exempt from specific provisions of 
5 U.S.C. 552a.
    (i) System Identifier: CIG-21
    (1) System name: Congressional Correspondence Tracking System.
    (2) Exemption: During the processing of a Congressional inquiry, 
exempt materials from other systems of records may in turn become part 
of the case record in this system. To the extent that copies of exempt 
records from those ``other'' systems of records are entered into this 
system, the Inspector General, DoD, claims the same exemptions for the 
records from those ``other'' systems that are entered into this system, 
as claimed for the original primary system of which they are a part.
    (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7)
    (4) Reasons: Records are only exempt from pertinent provisions of 5 
U.S.C. 552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. In general, the exemptions 
were claimed in order to protect properly classified information 
relating to national defense and foreign policy, to avoid interference 
during the conduct of criminal, civil, or administrative actions or 
investigations, to ensure protective services provided the President and 
others are not compromised, to protect the identity of confidential 
sources incident to Federal employment, military service, contract, and 
security clearance determinations, to preserve the confidentiality and 
integrity of Federal testing materials, and to safeguard evaluation 
materials used for military promotions when furnished by a confidential 
source. The exemption rule for the

[[Page 894]]

original records willidentify the specific reasons why the records are 
exempt from specific provisions of 5 U.S.C. 552a.

[56 FR 51976, Oct. 17, 1991, as amended at 57 FR 24547, June 10, 1992; 
61 FR 2916, Jan. 30, 1996; 64 FR 72929, Dec. 29, 1999; 68 FR 37969, June 
26, 2003; 69 FR 7366, Feb. 17, 2004]



Sec. 312.13  Ownership of OIG investigative records.

    (a) Criminal and or civil investigative reports shall not be 
retained by DoD recipient organizations. Such reports are the property 
of OIG and are on loan to the recipient organization for the purpose for 
which requested or provided. All copies of such reports shall be 
destroyed within 180 days after the completion of the final action by 
the requesting organization.
    (b) Investigative reports which require longer periods of retention 
may be retained only with the specific written approval of OIG.



Sec. 312.14  Referral of records.

    An OIG system of records may contain records other DoD Components or 
Federal agencies originated, and who may have claimed exemptions for 
them under the Privacy Act of 1974. When any action is initiated on a 
portion of any several records from another agency which may be exempt, 
consultation with the originating agency or component will be affected. 
Documents located within OIG system of records coming under the 
cognizance of another agency will be referred to that agency for review 
and direct response to the requester.



PART 313_THE CHAIRMAN OF THE JOINT CHIEFS OF STAFF AND THE JOINT STAFF 
PRIVACY PROGRAM--Table of Contents




    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).



Sec. 313.1  Source of regulations.

    The Office of the Joint Chiefs of Staff is governed by the Privacy 
Act implementation regulations of the Office of the Secretary of 
Defense, 32 CFR part 311.

[40 FR 55535, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57802, Nov. 14, 1991]



PART 314_DEFENSE ADVANCED RESEARCH PROJECTS AGENCY, PRIVACY ACT OF 
1974--Table of Contents




    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).



Sec. 314.1  Source of regulations.

    The Defense Advanced Research Projects Agency is governed by the 
Privacy Act implementation regulations of the Office of the Secretary of 
Defense, 32 CFR part 311.

[40 FR 55535, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57802, Nov. 14, 1991]



PART 315_UNIFORMED SERVICES UNIVERSITY OF HEALTH SCIENCES, PRIVACY ACT 
OF 1974--Table of Contents




    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).



Sec. 315.1  Source of regulations.

    The Uniformed Services University of the Health Sciences, is 
governed by the Privacy Act implementation regulations of the Office of 
the Secretary of Defense, 32 CFR part 311.

[40 FR 55535, Nov. 28, 1975. Redesignated at 56 FR 55631, Oct. 29, 1991, 
as amended at 56 FR 57802, Nov. 14, 1991]



PART 316_DEFENSE INFORMATION SYSTEMS AGENCY PRIVACY PROGRAM--Table 
of Contents




Sec.
316.1 Purpose.
316.2 Applicability.
316.3 Authority.
316.4 Definitions.
316.5 Policy.
316.6 Procedures and responsibilities.
316.7 Questions.
316.8 Exemptions.

    Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).

[[Page 895]]


    Source: 40 FR 55535, Nov. 28, 1975, unless otherwise noted. 
Redesignated at 57 FR 6074, Feb. 20, 1992.



Sec. 316.1  Purpose.

    This part delineates responsibility and provides guidance for the 
implementation of Pub. L. 93-579 (Privacy Act of 1974).



Sec. 316.2  Applicability.

    This part applies to Headquarters, Defense Information Systems 
Agency (DISA) and DISA field activities.

[40 FR 55535, Nov. 28, 1975. Redesignated at 57 FR 6074, Feb. 20, 1992, 
as amended at 62 FR 26389, May 14, 1997]



Sec. 316.3  Authority.

    This part is published in accordance with the authority contained in 
32 CFR part 310, August 1975.

[40 FR 55535, Nov. 28, 1975. Redesignated and amended at 57 FR 6074, 
Feb. 20, 1992]



Sec. 316.4  Definitions.

    Add to the definitions contained in 32 CFR 310.6 the following:
    System Manager: The DISA official who is responsible for policies 
and procedures governing a DISA System of Record. His title and duty 
address will be found in the paragraph entitled Sysmanager in DISA's 
Record System Notices which are published in the Federal Register in 
compliance with provisions of the Privacy Act of 1974.

[40 FR 55535, Nov. 28, 1975. Redesignated and amended at 57 FR 6074, 
Feb. 20, 1992; 62 FR 26389, May 14, 1997]



Sec. 316.5  Policy.

    It is the policy of DISA:
    (a) To preserve the personal privacy of individuals, to permit an 
individual to know what records exist pertaining to him in the DISA, and 
to have access to and have a copy made of all or any portion of such 
records and to correct or amend such records.
    (b) To collect, maintain, use, or disseminate any record of 
identifiable personal information in a manner that assures that such 
action is for a necessary and lawful purpose; that the information is 
timely and accurate for its intended use; and that adequate safeguards 
are provided to prevent misuse of such information.

[40 FR 55535, Nov. 28, 1975. Redesignated at 57 FR 6074, Feb. 20, 1992, 
as amended at 62 FR 26389, May 14, 1997]



Sec. 316.6  Procedures and responsibilities.

    (a) The Counsel, DISA, is hereby designated the Privacy Act Officer 
for DISA and is responsible for insuring that an internal DISA Privacy 
Program is established and maintained. He will also insure that all 
echelons of DISA effectively comply with and implement 32 CFR part 310.
    (b) The Civilian Assistant to the Chief of Staff will be responsible 
for the annual reporting requirements contained in 32 CFR 310.5.
    (c) DISA System Managers and other appropriate DISA officials will:
    (1) Insure compliance with the provisions of 32 CFR 310.9.
    (2) Comply with the provisions of 32 CFR 286a.11. In this area the 
Assistant to the Director for Administration will provide assistance.
    (3) Adhere to the following:
    (i) Within DISA, the System Manager of any record system will assure 
that records pertaining to an individual will be disclosed, upon 
request, to the individual to whom the record pertains. The individual 
need not state a reason or otherwise justify the need to gain access. A 
person of the individual's choosing may accompany the individual when 
the record is disclosed. The System Manager may require the individual 
to furnish a written statement authorizing discussion of the 
individual's records in the presence of the accompanying person. If 
requested, the System Manager will have a copy made of all or any 
portion of the record pertaining to the individual in a form 
comprehensible to the requester.
    (ii) The System Manager may release records to the individual's 
representative who has the written consent of the individual. The System 
Manager will require reasonable identification of individuals to assure 
that rec ords are disclosed to the proper person. No verification of 
identity will be required of an individual seeking access to records 
which are otherwise available to any member of the public under the

[[Page 896]]

Freedom of Information Act. Identification requirements should be 
consistent with the nature of the records being disclosed. For 
disclosure of records to an individual in person, the System Manager 
will require that the individual show some form of identification. For 
records disclosed to an individual in person or by mail, the System 
Manager may require whatever identifying information is needed to locate 
the record; i.e., name, social security number, date of birth. If the 
sensitivity of the data warrants, the System Manager may require a 
signed notarized statement of identity. The System Manager may compare 
the signatures of the requester with those in the records to verify 
identity. An individual will not be denied access to his record for 
refusing to disclose his social security number unless disclosure is 
required by statute or by regulation adopted before 1 January 1975. An 
individual will not be denied access to records pertaining to him 
because the records are exempted from disclosure under the provisions of 
the Freedom of Information Act.
    (iii) The System Manager will not deny access to a record or a copy 
thereof to an individual solely because its physical presence is not 
readily available (i.e. on magnetic tape) or because the context of the 
record may disclose sensitive information about another individual. To 
protect the personal privacy of other individuals who may be identified 
in a record, the System Manager shall prepare an extract to delete only 
that information which would not be releasable to the requesting 
individual under the Freedom of Information Act.
    (iv) When the System Manager is of the opinion that the disclosure 
of medical information could have an adverse effect upon the individual 
to whom it pertains, the System Manager will promptly request the 
individual to submit the name and address of a doctor who will determine 
whether the medical record may be disclosed directly to the individual. 
The System Manager will then request the opinion of the doctor named by 
the individual on whether a medical record may be disclosed to the 
individual. The System Manager shall disclose the medical record to the 
individual to whom it pertains unless, in the judgment of the doctor, 
access to the record could have an adverse effect upon the individual's 
physical or mental health. In this event the System Manager will 
transmit the record to the doctor and immediately inform the individual.
    (v) The fees to be charged, if any, to an individual for making 
copies of his record, excluding the cost of any search for and review of 
the record, will be in accordance with the ``Schedule of Fees'' as set 
forth in 32 CFR 286.5 and 286.10.
    (vi) The System Manager of the record will permit an individual to 
request amendment of a record pertaining to the individual. Requests to 
amend records shall be in person or in writing and shall be submitted to 
the System Manager who maintains the records. Such requests should 
contain as a minimum, identifying information needed to locate the 
record, a brief description of the item or items of information to be 
amended, and the reason for the requested change.
    (vii) The System Manager will provide a written acknowledgment of 
the receipt of a request to amend a record to the individual who 
requested the amendment within 10 days (excluding Saturdays, Sundays, 
and legal public holidays) after the date of receipt of such request. 
Such an acknowledgment may, if necessary, request any additional 
information needed to make a determination. No acknowledgment is 
required if the request can be reviewed and processed and the individual 
notified of compliance or denial within the 10 day period.
    (viii) The System Manager will promptly take one of the following 
actions on requests to amend records:
    (A) Refer the request to the agency or office that has control of 
and maintains the record in those instances where the record requested 
remains the property of the controlling office or agency.
    (B) In accordance with existing statute, regulation, or 
administrative procedure, make any correction of any portion thereof 
which the individual believes is not accurate, relevant, timely or 
complete, or

[[Page 897]]

    (C) Inform the individual of the System Manager's refusal to amend 
the record in accordance with the individual's request, the reason for 
the refusal, and the individual's right to request a review of the 
refusal by the Director, DISA, through the DISA Privacy Act Board.
    (ix) The DISA Privacy Act Board will be comprised of the DISA 
Counsel, as Chairman; the Assistant to the Director for Administration, 
and the Assistant to the Director for Personnel; or in their absence, 
their authorized representatives. The individual who disagrees with the 
refusal of the System Manager to amend his record may request a review 
of this refusal by the DISA Privacy Act Board. The request for the 
review may be made orally or in writing and shall be made to the System 
Manager. The System Manager will promptly forward the request for review 
to the Chairman of the Board to make a proper review. The Board will 
promptly review the matter. If, after review, the Board is unanimous in 
its decision that the record be amended in accordance with the request 
of the individual then the Chairman of the Board shall so notify the 
System Manager. The System Manager will immediately make the necessary 
corrections to the record and will promptly notify the individual. The 
System Manager will, if an accounting of disclosure of the record has 
been made, advise all previous recipients of the record, which was 
corrected, of the correction and its substance. This will be done in all 
instances when a record is amended. If, after review, the Board decides 
that the request for amendment should be denied, it will promptly 
forward its recommendation to the Director, DCA. A majority vote of the 
members of the Board will constitute a recommendation to the Director.
    (x) The Director, DISA, upon receipt of the Board's recommendation, 
will complete the review and make a final determination.
    (xi) If the Director, DISA, after his review, agrees with the 
individual's request to amend the record, he will, through the DISA 
Counsel, so advise the individual in writing. The System Manager will 
receive a copy of the Director's decision and will assure that the 
record is corrected accordingly and that if an accounting of disclosure 
of the record has been made, advise all previous recipients of the 
record which was corrected of the correction and its substance.
    (xii) If, after his review, the Director refuses to amend the 
records as the individual requested, he will, through the DISA Counsel, 
advise the individual of his refusal and the reasons for it; of the 
individual's right to file a concise statement setting forth the reasons 
for the individual's disagreement with the decision of the Director, 
DISA; that the statement which is filed will be made available to anyone 
to whom the record is subsequently disclosed together with, at the 
discretion of the Agency, a brief statement by the Agency summarizing 
its reasons for refusing to amend the record; that prior recipients of 
the disputed record will be provided a copy of any statement of dispute 
to the extent that an accounting of disclosures was maintained; and of 
the individual's right to seek judicial review of the Agency's refusal 
to amend a record.
    (xiii) The Director's final determination on the individual's 
request for a review of the System Manager's initial refusal to amend 
the record must be concluded within 30 days (excluding Saturdays, 
Sundays, and legal public holidays) from the date on which the 
individual requested such review unless the Director determines that a 
fair and equitable review cannot be made within that time. If additional 
time is required, the individual will be informed in writing of reasons 
for the delay and of the approximate date on which the review is 
expected to be completed.
    (xiv) After the Director, DISA has refused to amend a record and the 
individual has filed a statement setting forth the reasons for the 
individual's disagreement with the decision of the Director, the System 
Manager will clearly note any portion of the record which is disputed. 
The System Manager's notation should make clear that the record is 
disputed and this should be apparent to anyone who may subsequently have 
access to, use, or disclose the record. When the System Manager has 
previously disclosed or will subsequently disclose that portion of the

[[Page 898]]

record which is disputed he will note that that portion of the record is 
disputed and will provide the recipients of the record with a copy of 
the individual's statement setting forth the reasons for the 
individual's disagreement with the decision of the Director not to amend 
the record. The System Manager will also provide recipients of the 
disputed record with a brief summary of the Director's reasons for not 
making the requested amendments to the record.
    (xv) Nothing herein shall allow an individual access to any 
information compiled in reasonable anticipation of a civil action or 
proceeding.
    (xvi) Any requests by an individual for access to or copies of his 
records shall be processed in accordance with this part and 32 CFR part 
310.
    (d) DISA System Managers will be:
    (1) Responsible for complying with the provisions contained in 32 
CFR 310.8 relating to the disclosure to others of personal records, 
obtaining the written consent of individuals to whom the record 
pertains, and for keeping an accurate accounting of each disclosure of a 
record.
    (2) Responsible for providing to the Civilian Assistant to the Chief 
of Staff the information requested in 32 CFR 310.5. However, the 
information will be reported on a quarterly basis with the first report 
due to the Civilian Assistant to the Chief of Staff by 31 December 1975.
    (e) The Assistant to the Director for Administration, Headquarters, 
DCA will:
    (1) Be responsible for furnishing written guidelines to assist 
System Managers and other DISA officials in evaluating and implementing 
paperwork management procedures required under the Privacy Act of 1974. 
In this regard it should be noted that the Act establishes a number of 
requirements. Among these are the requirements:
    (i) To disclose records contained in a system of records only under 
conditions specified in the law,
    (ii) To maintain an accounting of such disclosures,
    (iii) To establish procedures for the disclosure to an individual of 
his record or information pertaining to him,
    (iv) For reviewing a request concerning the amendment of such 
record, and
    (v) For permitting individuals to file a statement of disagreement 
which will be forwarded with subsequent disclosures.

The guidelines will cover those portions of the Privacy Act which 
requires paperwork systems for implementation. In preparing those 
guidelines the Assistant to the Director for Administration will make 
use of the ``Records Management System for Implementing the Privacy 
Act'' as provided by the GSA and National Archives and Records Service, 
Office of Records Management. The GSA and NARA procedures and guidelines 
will be adapted and modified as required to meet DISA needs.
    (2) Be responsible for providing the ``Forms'' which are required to 
comply with 32 CFR 310.9(b).
    (f) The Assistant to the Director for Personnel, Headquarters, DISA 
will:
    (1) Be responsible for development, within DISA, of an appropriate 
training program for all DISA personnel whose duties involve 
responsibilities for systems of records affected by the Privacy Act.
    (2) Assure that DISA personnel involved in the design, development, 
operation, or maintenance of any system of records, as defined in 32 CFR 
310.6 are informed of all requirements to protect the privacy of the 
individuals who are subjects of the records. The criminal penalties and 
civil suit aspects of the Privacy Act will be emphasized.
    (3) Assure that within DISA administrative and physical safeguards 
are established to protect information from unauthorized or 
unintentional access, disclosure, modification or destruction and to 
insure that all persons whose official duties require access to or 
processing and maintenance of personal information are trained in the 
proper safeguarding and use of such information.

[40 FR 55535, Nov. 28, 1975. Redesignated and amended at 57 FR 6074, 
Feb. 20, 1992; 62 FR 26389, May 14, 1997]

[[Page 899]]



Sec. 316.7  Questions.

    Questions on both the substance and procedure of the Privacy Act and 
the DISA implementation thereof should be addressed to the DISA Counsel 
by the most expeditious means possible, including telephone calls.

[40 FR 55535, Nov. 28, 1975. Redesignated at 57 FR 6074, Feb. 20, 1992, 
as amended at 62 FR 26390, May 14, 1997]



Sec. 316.8  Exemptions.

    Section 5 U.S.C. 552a (3)(j) and (3)(k) authorize an agency head to 
exempt certain systems of records or parts of certain systems of records 
from some of the requirements of the act. This part reserves to the 
Director, DISA, as head of an agency, the right to create exemptions 
pursuant to the exemption provisions of the act. All systems of records 
maintained by DISA shall be exempt from the requirements of 5 U.S.C. 
552a (d) pursuant to 5 U.S.C. 552a(3)(k)(1) to the extent that the 
system contains any information properly classified under Executive 
Order 11652, ``Classification and Declassification of National Security 
Information and Material,'' dated March 8, 1972 (37 FR 10053, May 19, 
1972) and which is required by the executive order to be kept secret in 
the interest of national defense or foreign policy. This exemption, 
which may be applicable to parts of all systems of records, is necessary 
because certain record systems not otherwise specifically designated for 
exemptions may contain isolated information which has been properly 
classified.

[42 FR 20298, Apr. 19, 1977. Redesignated at 57 FR 6074, Feb. 20, 1992, 
as amended at 62 FR 26390, May 14, 1997]



PART 317_DCAA PRIVACY ACT PROGRAM--Table of Contents




Sec.
317.1 Purpose.
317.2 Applicability and scope.
317.3 Policy.
317.4 Responsibilities.
317.5 Information requirements.
317.6 Procedures.

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 65 FR 63799, Oct. 25, 2000, unless otherwise noted.



Sec. 317.1  Purpose

    This part provides policies and procedures for the Defense Contract 
Audit Agency's implementation of the Privacy Act of 1974 (DCAA 
Regulation 5410.10,\1\ as amended, (5 U.S.C. 552a); DoD 5400.11 and DoD 
5400.11-R,\2\ ``DoD Privacy Program'' (32 CFR part 310); and is intended 
to promote uniformity within DCAA.
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    \1\ Copies may be obtained from http://www.deskbook.osd.mil.
    \2\ Copies may be obtained from http://web7.whs.osd.mil.
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Sec. 317.2  Applicability and scope.

    (a) This part applies to all DCAA organizational elements and takes 
precedence over all regional regulatory issuances that supplement the 
DCAA Privacy Program.
    (b) This part shall be made applicable by contract or other legally 
binding action to contractors whenever a DCAA contract provides for the 
operation of a system of records or portion of a system of records to 
accomplish an Agency function.



Sec. 317.3  Policy.

    (a) It is DCAA policy that personnel will comply with the DCAA 
Privacy Program; the Privacy Act of 1974; and the DoD Privacy Program 
(32 CFR part 310). Strict adherence is necessary to ensure uniformity in 
the implementation of the DCAA Privacy Program and create conditions 
that will foster public trust. It is also Agency policy to safeguard 
personal information contained in any system of records maintained by 
DCAA organizational elements and to make that information available to 
the individual to whom it pertains to the maximum extent practicable.
    (b) DCAA policy specifically requires that DCAA organizational 
elements:
    (1) Collect, maintain, use, and disseminate personal information 
only when it is relevant and necessary to achieve a purpose required by 
statute or Executive Order.
    (2) Collect personal information directly from the individuals to 
whom it

[[Page 900]]

pertains to the greatest extent practical.
    (3) Inform individuals who are asked to supply personal information 
for inclusion in any system of records:
    (i) The authority for the solicitation.
    (ii) Whether furnishing the information is mandatory or voluntary.
    (iii) The intended uses of the information.
    (iv) The routine disclosures of the information that may be made 
outside of DoD.
    (v) The effect on the individual of not providing all or any part of 
the requested information.
    (4) Ensure that records used in making determinations about 
individuals and those containing personal information are accurate, 
relevant, timely, and complete for the purposes for which they are being 
maintained before making them available to any recipients outside of 
DoD, other than a Federal agency, unless the disclosure is made under 
DCAA Regulation 5410.8, DCAA Freedom of Information Act Program.\3\
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    \3\ Copies may be obtained from http://www.deskbook.osd.mil.
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    (5) Keep no record that describes how individuals exercise their 
rights guaranteed by the First Amendment to the U.S. Constitution, 
unless expressly authorized by statute or by the individual to whom the 
records pertain or is pertinent to and within the scope of an authorized 
law enforcement activity.
    (6) Notify individuals whenever records pertaining to them are made 
available under compulsory legal processes, if such process is a matter 
of public record.
    (7) Establish safeguards to ensure the security of personal 
information and to protect this information from threats or hazards that 
might result in substantial harm, embarrassment, inconvenience, or 
unfairness to the individual.
    (8) Establish rules of conduct for DCAA personnel involved in the 
design, development, operation, or maintenance of any system of records 
and train them in these rules of conduct.
    (9) Assist individuals in determining what records pertaining to 
them are being collected, maintained, used, or disseminated.
    (10) Permit individual access to the information pertaining to them 
maintained in any system of records, and to correct or amend that 
information, unless an exemption for the system has been properly 
established for an important public purpose.
    (11) Provide, on request, an accounting of all disclosures of the 
information pertaining to them except when disclosures are made:
    (i) To DoD personnel in the course of their official duties.
    (ii) Under DCAA Regulation 5410.8, DCAA Freedom of Information Act 
Program.
    (iii) To another agency or to an instrumentality of any governmental 
jurisdiction within or under control of the United States conducting law 
enforcement activities authorized by law.
    (12) Advise individuals on their rights to appeal any refusal to 
grant access to or amend any record pertaining to them, and file a 
statement of disagreement with the record in the event amendment is 
refused.



Sec. 317.4  Responsibilities.

    (a) The Assistant Director, Resources has overall responsibility for 
the DCAA Privacy Act Program and will serve as the sole appellate 
authority for appeals to decisions of respective initial denial 
authorities.
    (b) The Chief, Administrative Management Division under the 
direction of the Assistant Director, Resources, shall:
    (1) Establish, issue, and update policies for the DCAA Privacy Act 
Program; monitor compliance with this part; and provide policy guidance 
for the DCAA Privacy Act Program.
    (2) Resolve conflicts that may arise regarding implementation of 
DCAA Privacy Act policy.
    (3) Designate an Agency Privacy Act Advisor, as a single point of 
contact, to coordinate on matters concerning Privacy Act policy.
    (4) Make the initial determination to deny an individual's written 
Privacy Act request for access to or amendment of documents filed in 
Privacy Act systems of records. This authority cannot be delegated.

[[Page 901]]

    (c) The DCAA Privacy Act Advisor under the supervision of the Chief, 
Administrative Management Division shall:
    (1) Manage the DCAA Privacy Act Program in accordance with this part 
and applicable DCAA policies, as well as DoD and Federal regulations.
    (2) Provide guidelines for managing, administering, and implementing 
the DCAA Privacy Act Program.
    (3) Implement and administer the Privacy Act program at the 
Headquarters.
    (4) Ensure that the collection, maintenance, use, or dissemination 
of records of identifiable personal information is in a manner that 
assures that such action is for a necessary and lawful purpose; that the 
information is timely and accurate for its intended use; and that 
adequate safeguards are provided to prevent misuse of such information.
    (5) Maintain and publish DCAA Pamphlet 5410.13, DCAA Compilation of 
Privacy Act System Notices.\4\
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    \4\ Copies may be obtained from the Defense Contract Audit Agency, 
ATTN: DCAA-CMO, 8725 John J. Kingman Road, Suite 2135, Fort Belvoir, VA 
22060-6219. Electronic copies of DCAA Privacy notices may be obtained 
from http://www.defenselink.mil/privacy.
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    (6) Prepare promptly any required new, amended, or altered system 
notices for systems of records subject to the Privacy Act and submit 
them to the Defense Privacy Office for subsequent publication in the 
Federal Register.
    (7) Prepare the annual Privacy Act Report as required by DoD 
5400.11-5, DoD Privacy program.
    (8) Conduct training on the Privacy Act program for Agency 
personnel.
    (d) Heads of Principal Staff Elements are responsible for:
    (1) Reviewing all regulations or other policy and guidance issuances 
for which they are the proponent to ensure consistency with the 
provisions of this part.
    (2) Ensuring that the provisions of this part are followed in 
processing requests for records.
    (3) Forwarding to the DCAA Privacy Act Advisor, any Privacy Act 
requests received directly from a member of the public, so that the 
request may be administratively controlled and processed.
    (4) Ensuring the prompt review of all Privacy Act requests, and when 
required, coordinating those requests with other organizational 
elements.
    (5) Providing recommendations to the DCAA Privacy Act Advisor 
regarding the releasability of DCAA records to members of the public, 
along with the responsive documents.
    (6) Providing the appropriate documents, along with a written 
justification for any denial, in whole or in part, of a request for 
records to the DCAA Privacy Act Advisor. Those portions to be excised 
should be bracketed in red pencil, and the specific exemption or 
exemptions cites which provide the basis for denying the requested 
records.
    (e) The General Counsel is responsible for:
    (1) Ensuring uniformity is maintained in the legal position, and the 
interpretation of the Privacy Act; 32 CFR part 310; and this part.
    (2) Consulting with DoD General Counsel on final denials that are 
inconsistent with decisions of other DoD components, involve issues not 
previously resolved, or raise new or significant legal issues of 
potential significance to other Government agencies.
    (3) Providing advice and assistance to the Assistant Director, 
Resources; Regional Directors; and the Regional Privacy Act Officer, 
through the DCAA Privacy Act Advisor, as required, in the discharge of 
their responsibilities.
    (4) Coordinating Privacy Act litigation with the Department of 
Justice.
    (5) Coordinating on Headquarters denials of initial requests.
    (f) Each Regional Director is responsible for the overall management 
of the Privacy Act program within their respective regions. Under his/
her direction, the Regional Resources Manager is responsible for the 
management and staff supervision of the program and for designating a 
Regional Privacy Act Officer. Regional Directors will, as designee of 
the Director, make the initial determination to deny an individual's 
written Privacy Act request for access to or amendment of documents 
filed in Privacy Act systems of records. This authority cannot be 
delegated.

[[Page 902]]

    (g) Regional Privacy Act Officers will:
    (1) Implement and administer the Privacy Act program throughout the 
region.
    (2) Ensure that the collection, maintenance, use, or dissemination 
of records of identifiable personal information is in a DCAAR 5410.10 
manner that assures that such action is for a necessary and lawful 
purpose; that the information is timely and accurate for its intended 
use; and that adequate safeguards are provided to prevent misuse of such 
information.
    (3) Prepare input for the annual Privacy Act Report when requested 
by the DCAA Information and Privacy Advisor.
    (4) Conduct training on the Privacy Act program for regional and FAO 
personnel.
    (5) Provide recommendations to the Regional Director through the 
Regional Resources Manager regarding the releasability of DCAA records 
to members of the public.
    (h) Managers, Field Audit Offices (FAOs) will:
    (1) Ensure that the provisions of this part are followed in 
processing requests for records.
    (2) Forward to the Regional Privacy Act Officer, any Privacy Act 
requests received directly from a member of the public, so that the 
request may be administratively controlled and processed.
    (3) Ensure the prompt review of all Privacy Act requests, and when 
required, coordinating those requests with other organizational 
elements.
    (4) Provide recommendation to the Regional Privacy Act Officer 
regarding the releasability of DCAA records to members of the public, 
along with the responsive documents.
    (5) Provide the appropriate documents, along with a written 
justification for any denial, in whole or in part, of a request for 
records to the Regional Privacy Act Officer. Those portions to be 
excised should be bracketed in red pencil, and the specific exemption or 
exemptions cited which provide the basis for denying the requested 
records.
    (i) DCAA Employees will:
    (1) Not disclose any personal information contained in any system of 
records, except as authorized by this part.
    (2) Not maintain any official files which are retrieved by name or 
other personal identifier without first ensuring that a notice for the 
system has been published in the Federal Register.
    (3) Report any disclosures of personal information from a system of 
records or the maintenance of any system of records that are not 
authorized by this part to the appropriate Privacy Act officials for 
their action.



Sec. 317.5  Information requirements.

    The Report Control Symbol. Unless otherwise directed, any report 
concerning implementation of the Privacy Program shall be assigned 
Report Control Symbol DD-DA&M(A)1379.



Sec. 317.6  Procedures.

    Procedures for processing material in accordance with the Privacy 
Act of 1974 are outlined in DoD 5400.11-R, DoD Privacy Program (32 CFR 
part 310).



PART 318_DEFENSE THREAT REDUCTION AGENCY PRIVACY PROGRAM--Table of 
Contents




Sec.
318.1 Reissuance and purpose.
318.2 Application.
318.3 Definitions.
318.4 Policy.
318.5 Designations and responsibilities.
318.6 Procedures for requests pertaining to individual records in a 
          record system.
318.7 Disclosure of requested information to individuals.
318.8 Request for correction or amendment to a record.
318.9 Agency review of request for correction or amendment of record.
318.10 Appeal of initial adverse Agency determination for access, 
          correction or amendment.
318.11 Disclosure of record to persons other than the individual to whom 
          it pertains.
318.12 Fees.
318.13 Enforcement actions.
318.14 Blanket routine uses.
318.15 Rules of conduct.
318.16 Exemption rules.

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

    Source: 65 FR 18894, Apr. 10, 2000, unless otherwise noted.

[[Page 903]]



Sec. 318.1  Reissuance and purpose.

    (a) This part updates the policies, responsibilities, and procedures 
of the DTRA Privacy Program under the Privacy Act of 1974, as amended (5 
U.S.C. 552a), OMB Circular A-130,\1\ and the DoD Privacy Program (32 CFR 
part 310).
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    \1\ Copies may be obtained: http://www.whitehouse.gov/OMB/circulars.
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    (b) This rule establishes procedures whereby individuals can:
    (1) Request notification of whether Defense Threat Reduction Agency 
(DTRA) maintains or has disclosed a record pertaining to them in any 
nonexempt system of records;
    (2) Request a copy or other access to such a record or to an 
accounting of its disclosure;
    (3) Request that the record be amended; and
    (4) Appeal any initial adverse determination of any such request.
    (c) Specifies those system of records which the Director, Defense 
Threat Reduction Agency has determined to be exempt from the procedures 
established by this rule and by certain provisions of the Privacy Act.
    (d) DTRA policy encompasses the safeguarding of individual privacy 
from any misuse of DTRA records and the provides the fullest access 
practicable by individuals to DTRA records concerning them.



Sec. 318.2  Applicability.

    (a) This part applies to all members of the Armed Forces and 
Department of Defense civilians assigned to the DTRA at any of its duty 
locations.
    (b) This part shall be made applicable to DoD contractors who are 
operating a system of records on behalf of DTRA, to include any of the 
activities, such as collecting and disseminating records, associated 
with maintaining a system of records.



Sec. 318.3  Definitions.

    Access. The review of a record or a copy of a record or parts 
thereof in a system of records by any individual.
    Agency. For the purposes of disclosing records subject to the 
Privacy Act among DoD Components, the Department of Defense is 
considered a single agency. For all other purposes to include 
applications for access and amendment, denial of access or amendment, 
appeals from denials, and record keeping as regards release to non-DoD 
agencies; each DoD Component is considered an agency within the meaning 
of the Privacy Act.
    Confidential source. A person or organization who has furnished 
information to the federal government under an express promise that the 
person's or the organization's identity will be held in confidence or 
under an implied promise of such confidentiality if this implied promise 
was made before September 27, 1975.
    Disclosure. The transfer of any personal information from a system 
of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review) to any person, private entity, 
or government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.
    Individual. A living person who is a citizen of the United States or 
an alien lawfully admitted for permanent residence. The parent of a 
minor or the legal guardian of any individual also may act on behalf of 
an individual. Corporations, partnerships, sole proprietorships, 
professional groups, businesses, whether incorporated or unincorporated, 
and other commercial entities are not ``individuals.''
    Law enforcement activity. Any activity engaged in the enforcement of 
criminal laws, including efforts to prevent, control, or reduce crime or 
to apprehend criminals, and the activities of prosecutors, courts, 
correctional, probation, pardon, or parole authorities.
    Maintain. Includes maintain, collect, use or disseminate.
    Official use. Within the context of this part, this term is used 
when officials and employees of a DoD Component have a demonstrated need 
for the use of any record or the information contained therein in the 
performance of their official duties, subject to DoD 5200.1-R,\2\ ``DoD 
Information Security Program Regulation''.
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    \2\ Copies may be obtained: http://web7.whs.osd.mil/corres.htm.

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[[Page 904]]

    Personal information. Information about an individual that 
identifies, relates or is unique to, or describes him or her; e.g., a 
social security number, age, military rank, civilian grade, marital 
status, race, salary, home/office phone numbers, etc.
    Privacy Act request. A request from an individual for notification 
as to the existence of, access to, or amendment of records pertaining to 
that individual. These records must be maintained in a system of 
records.
    Member of the public. Any individual or party acting in a private 
capacity to include federal employees or military personnel.
    Record. Any item, collection, or grouping of information, whatever 
the storage media (e.g., paper, electronic, etc.), about an individual 
that is maintained by a DoD Component, including but not limited to, his 
or her education, financial transactions, medical history, criminal or 
employment history and that contains his or her name, or the identifying 
number, symbol, or other identifying particular assigned to the 
individual, such as a finger or voice print or a photograph.
    Risk assessment. An analysis considering information sensitivity, 
vulnerabilities, and the cost to a computer facility or word processing 
activity in safeguarding personal information processed or stored in the 
facility or activity.
    Routine use. The disclosure of a record outside the Department of 
Defense for a use that is compatible with the purpose for which the 
information was collected and maintained by the Department of Defense. 
The routine use must be included in the published system notice for the 
system of records involved.
    Statistical record. A record maintained only for statistical 
research or reporting purposes and not used in whole or in part in 
making determinations about specific individuals.
    System manager. The DoD Component official who is responsible for 
the operation and management of a system of records.
    System of records. A group of records under the control of a DoD 
Component from which personal information is retrieved by the 
individual's name or by some identifying number, symbol, or other 
identifying particular assigned to an individual.
    Word processing system. A combination of equipment employing 
automated technology, systematic procedures, and trained personnel for 
the primary purpose of manipulating human thoughts and verbal or written 
or graphic presentations intended to communicate verbally or visually 
with another individual.
    Word processing equipment. Any combination of electronic hardware 
and computer software integrated in a variety of forms (firmware, 
programmable software, handwiring, or similar equipment) that permits 
the processing of textual data. Generally, the equipment contains a 
device to receive information, a computer-like processor with various 
capabilities to manipulate the information, a storage medium, and an 
output device



Sec. 318.4  Policy.

    (a) It is DTRA policy that:
    (1) The personal privacy of an individual shall be respected and 
protected. Personal information shall be collected, maintained, used, or 
disclosed to insure that:
    (2) It shall be relevant and necessary to accomplish a lawful DTRA 
purpose required to be accomplished by Federal statute or Executive 
order;
    (3) It shall be collected to the greatest extent practicable 
directly from the individual;
    (4) The individual shall be informed as to why the information is 
being collected, the authority for collection, what uses will be made of 
it, whether disclosure is mandatory or voluntary, and the consequences 
of not providing the information;
    (5) It shall be relevant, timely, complete and accurate for its 
intended use; and
    (6) Appropriate administrative, technical, and physical safeguards 
shall be established, based on the media (e.g., paper, electronic, etc.) 
involved, to ensure the security of the records and to prevent 
compromise or misuse during storage or transfer.
    (b) No record shall be maintained on how an individual exercises 
rights guaranteed by the First Amendment to

[[Page 905]]

the Constitution, except as specifically authorized by statute; 
expressly authorized by the individual on whom the record is maintained; 
or when the record is pertinent to and within the scope of an authorized 
law enforcement activity.
    (c) Notices shall be published in the Federal Register and reports 
shall be submitted to Congress and the Office of Management and Budget, 
in accordance with, and as required by 5 U.S.C. 552a, OMB Circular A-
130, and 32 CFR part 310, as to the existence and character of any 
system of records being established or revised by the DoD Components. 
Information shall not be collected, maintained, or disseminated until 
the required publication/review requirements are satisfied.
    (d) Individuals shall be permitted, to the extent authorized by this 
part:
    (1) To determine what records pertaining to them are contained in a 
system of records;
    (2) Gain access to such records and obtain a copy of those records 
or a part thereof;
    (3) Correct or amend such records on a showing the records are not 
accurate, relevant, timely, or complete.
    (4) Appeal a denial of access or a request for amendment.
    (e) Disclosure of records pertaining to an individual from a system 
of records shall be prohibited except with the consent of the individual 
or as otherwise authorized by 5 U.S.C. 552a and 32 CFR part 286. When 
disclosures are made, the individual shall be permitted, to the extent 
authorized by 5 U.S.C. 552a and 32 CFR part 310, to seek an accounting 
of such disclosures from DTRA.
    (f) Computer matching programs between DTRA and Federal, State, or 
local governmental agencies shall be conducted in accordance with the 
requirements of 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
    (g) DTRA personnel and Systems Managers shall conduct themselves, 
pursuant to established rules of conduct, so that personal information 
to be stored in a system of records shall only be collected, maintained, 
used, and disseminated as authorized by this part.



Sec. 318.5  Designations and responsibilities

    (a) The Director, DTRA shall:
    (1) Provide adequate funding and personnel to establish and support 
an effective Privacy Program.
    (2) Appoint a senior official to serve as the Agency Privacy Act 
Officer.
    (3) Serve as the Agency Appellate Authority.
    (b) The Privacy Act Officer shall:
    (1) Implement the Agency's Privacy Program in accordance with the 
specific requirements set forth in this part, 5 U.S.C. 552a, OMB 
Circular A-130, and 32 CFR part 310.
    (2) Establish procedures, as well as rules of conduct, necessary to 
implement this part so as to ensure compliance with the requirements of 
5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
    (3) Ensure that the DTRA Privacy Program periodically shall be 
reviewed by the DTRA Inspectors General or other officials, who shall 
have specialized knowledge of the DoD Privacy Program.
    (4) Serve as the Agency Initial Denial Authority.
    (c) The Privacy Act Program Manager shall:
    (1) Manage activities in support of the DTRA Programoversight in 
accordance with part, 5 U.S.C. 552a, OMB Circular A-130, and 32 CFR part 
310.
    (2) Provide operational support, guidance and assistance to Systems 
Managers for responding to requests for access/amendment of records.
    (3) Direct the day-by-day activities of the DTRA Privacy Program.
    (4) Provide guidance and assistance to DTRA elements in their 
implementation and execution of the DTRA Privacy Program.
    (5) Prepare and submit proposed new, altered, andamended systems of 
records, to include submission of required notices for publication in 
the Federal Register consistent with this part, 5 U.S.C. 552a, OMB 
Circular A-130, and 32 CFR part 310.
    (6) Prepare and submit proposed DTRA privacy rulemaking, to include 
documentation for submission of the proposed rule to the Office of the 
Federal Register for publication. Additionally, provide required 
documentation

[[Page 906]]

for reporting to the OMB and Congress, consistent with this part, 5 
U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310.
    (7) Provide advice and support to DTRA elements to ensure that:
    (i) All information requirements developed to collect and/or 
maintain personal data conform to DoD Privacy Act Program standards;
    (ii) Appropriate procedures and safeguards shall be developed, 
implemented, and maintained to protect personal information when it is 
stored in either a manual and/or automated system of records or 
transferred by electronic or non-electronic means; and
    (iii) Specific procedures and safeguards shall be developed and 
implemented when personal data is collected and maintained for research 
purposes.
    (8) Conduct reviews, and prepare and submit reports consistent with 
the requirements in this part, 5 U.S.C. 552a, OMB Circular A-130, and 32 
CFR part 310, or as otherwise directed by the Defense Privacy Office.
    (9) Conduct training for all assigned and employed DTRA personnel 
and for those individuals having primary responsibility for DTRA Privacy 
Act Record Systems consistent with requirements of this part, 5 U.S.C. 
552a, OMB Circular A-130, and 32 CFR part 310.
    (10) Serve as the principal points of contact for coordination of 
privacy and related matters.
    (d) The Directorate Heads and Office Chiefs shall:
    (1) Recognize and support the DTRA Privacy Act Program.
    (2) Appoint an individual to serve as Privacy Act Point of Contact 
within their purview.
    (3) Initiate prompt, constructive management actions on agreed-upon 
actions identified in agency Privacy Act reports.
    (e) The Chief, Information Systems shall:
    (1) Ensure that all personnel who have access to information from an 
automated system of records during processing or who are engaged in 
developing procedures for processing such information are aware of the 
provisions of this Instruction.
    (2) Promptly notify automated system managers and the Privacy Act 
Officer whenever they are changes to Agency Information Technology that 
may require the submission of an amended system notice for any system of 
records.
    (3) Establish rules of conduct for Agency personnel involved in the 
design, development, operation, or maintenance of any automated system 
of records and train them in these rules of conduct.
    (f) Agency System Managers shall exercise the Rules of Conduct as 
specified in 32 CFR part 310.
    (g) Agency personnel shall exercise the Rules of Conduct as 
specified in 32 CFR part 310.



Sec. 318.6  Procedures for requests pertaining to individual records 
in a record system.

    (a) An individual seeking notification of whether a system of 
records, maintained by the Defense Threat Reduction Agency, contains a 
record pertaining to himself/herself and who desires to review, have 
copies made of such records, or to be provided an accounting of 
disclosures from such records, shall submit his or her request in 
writing. Requesters are encourage to review the systems of records 
notices published by the Agency so as to specifically identify the 
particular record system(s) of interest to be accessed.
    (b) In addition to meeting the requirements set forth in this 
section 318.6, the individual seeking notification, review or copies, 
and an accounting of disclosures will provide in writing his or her full 
name, address, Social Security Number, and a telephone number where the 
requester can be contacted should questions arise concerning the 
request. This information will be used only for the purpose of 
identifying relevant records in response to an individual's inquiry. It 
is further recommended that individuals indicate any present or past 
relationship or affiliations, if any, with the Agency and the 
appropriate dates in order to facilitate a more thorough search. A 
notarized statement or an unsworn declaration in accordance with 28 
U.S.C. 1746 may also be required.

[[Page 907]]

    (c) An individual who wishes to be accompanied by another individual 
when reviewing his or her records, must provide the Agency with written 
consent authorizing the Agency to disclose or discuss such records in 
the presence of the accompanying individual.
    (d) Individuals should mail their written request to the FOIA/
Privacy Act Division, Defense Threat Reduction Agency, 45045 Aviation 
Drive, Dulles, VA 20166-7517 and indicate clearly on the outer envelope 
``Privacy Act Request.''



Sec. 318.7  Disclosure of requested information to individuals.

    (a) The Defense Threat Reduction Agency, upon receiving a request 
for notification of the existence of a record or for access to a record, 
shall acknowledge receipt of the request within 10 working days.
    (b) Determine whether or not such record exists.
    (c) Determine whether or not such request for access is available 
under the Privacy Act.
    (d) Notify requester of determinations within 30 working days after 
receipt of such request.
    (e) Provide access to information pertaining to that person which 
has been determined to be available within 30 working days.
    (f) Notify the individual if fees will be assessed for reproducing 
copies of the records. Fee schedule and rules for assessing fees are 
contained in Sec. 318.11.



Sec. 318.8  Request for correction or amendment to a record.

    (a) An individual may request that the Defense Threat Reduction 
Agency correct, amend, or expunge any record, or portions thereof, 
pertaining to the requester that he/she believe to be inaccurate, 
irrelevant, untimely, or incomplete.
    (b) Such requests shall specify the particular portions of the 
records in question, be in writing and should be mailed to the FOIA/
Privacy Act Division, Defense Threat Reduction Agency, 45045 Aviation 
Drive, Dulles, VA 20166-7517.
    (c) The requester shall provide sufficient information to identify 
the record and furnish material to substantiate the reasons for 
requesting corrections, amendments, or expurgation.



Sec. 318.9  Agency review of request for correction or amendment of 
record.

    (a) The Agency will acknowledge a request for correction or 
amendment within 10 working days of receipt. The acknowledgment will be 
in writing and will indicate the date by which the Agency expects to 
make its initial determination.
    (b) The Agency shall complete its consideration of requests to 
correct or amend records within 30 working days, and inform the 
requester of its initial determination.
    (c) If it is determined that records should be corrected or amended 
in whole or in part, the Agency shall advise the requester in writing of 
its determination; and correct or amend the records accordingly. The 
Agency shall then advise prior recipients of the records of the fact 
that a correction or amendment was made and provide the substance of the 
change.
    (d) If the Agency determines that a record should not be corrected 
or amended, in whole or in part, as requested by the individual, the 
Agency shall advise the requester in writing of its refusal to correct 
or amend the records and the reasons therefor. The notification will 
inform the requester that the refusal may be appealed administratively 
and will advise theindividual of the procedures for such appeals.



Sec. 318.10  Appeal of initial adverse Agency determination for access, 
correction or amendment.

    (a) An individual who disagrees with the denial or partial denial of 
his or her request for access, correction, or amendment of Agency 
records pertaining the himself/herself, may file a request for 
administrative review of such refusal within 30 days after the date of 
notification of the denial or partial denial.
    (b) Such requests shall be made in writing and mailed to the FOIA/
Privacy Act Division, Defense Threat Reduction Agency, 45045 Aviation 
Drive, Dulles, VA 20166-7517.

[[Page 908]]

    (c) The requester shall provide a brief written statement setting 
for the reasons for his or her disagreement with the initial 
determination and provide such additional supporting material as the 
individual feels necessary to justify the appeal.
    (d) Within 30 working days of receipt of the request for review, the 
Agency shall advise the individual of the final disposition of the 
request.
    (e) In those cases where the initial determination is reversed, the 
individual will be so informed and the Agency will take appropriate 
action.
    (f) In those cases where the initial determination is sustained, the 
individual shall be advised:
    (1) In the case of a request for access to a record, of 
theindividual's right to seek judicial review of the Agency refusal for 
access.
    (2) In the case of a request to correct or amend the record:
    (i) Of the individual's right to file a concise statement of his or 
her reasons for disagreeing with the Agency's decision in the record,
    (ii) Of the procedures for filing a statement of the disagreement, 
and
    (iii) Of the individual's right to seek judicial review of the 
Agency's refusal to correct or amend a record.



Sec. 318.11  Disclosure of record to persons other than the individual 
to whom it pertains.

    (a) General. No record contained in a system of records maintained 
by DTRA shall be disclosed by any means to any person or agency within 
or outside the Department of Defense without the request or consent of 
the subject of the record, except as described in 32 CFR 310.41, 
Appendix C to part 310, and/or a Defense Threat Reduction Agency system 
of records notice.
    (b) Accounting of disclosures. Except for disclosures made to 
members of the DoD in connection with their official duties, 
anddisclosures required by the Freedom of Information Act, an accounting 
will be kept of all disclosures of records maintained in DTRA system of 
records.
    (1) Accounting entries will normally be kept on a DTRA form, which 
will be maintained in the record file jacket, or in a document that is 
part of the record.
    (2) Accounting entries will record the date, nature and purpose of 
each disclosure, and the name and address of the person or agency to 
whom the disclosure is made.
    (3) Accounting records will be maintained for at least 5 years after 
the last disclosure, of for the life of the record, whichever is longer.
    (4) Subjects of DTRA records will be given access to associated 
accounting records upon request, except for those disclosures made to 
law enforcement activities when the law enforcement activity has 
requested that the disclosure not be made, and/or as exempted under 
Sec. 318.16.



Sec. 318.12  Fees.

    Individuals may request copies for retention of any documents to 
which they are granted access in DTRA records pertaining to them. 
Requesters will not be charged for the first copy of any records 
provided; however, duplicate copies will require a charge to cover costs 
of reproduction. Such charges will be computed in accordance with 32 CFR 
part 310.



Sec. 318.13  Enforcement actions.

    Procedures and sanctions are set forth in 5 U.S.C. 552a, OMB 
Circular A-130, and 32 CFR part 310.



Sec. 318.14  Blanket routine uses.

    (a) Blanket routine uses. Certain `blanket routine uses' of the 
records have been established that are applicable to every record system 
maintained within the Department of Defense unless specifically stated 
otherwise within a particular record system. These additional blanket 
routine uses of the records are published only once in the interest of 
simplicity, economy and to avoid redundancy.
    (b) Routine Use--Law Enforcement. If a system of records maintained 
by a DoD Component, to carry out its functions, indicates a violation or 
potential violation of law, whether civil, criminal, or regulatory in 
nature, and whether arising by general statute or by regulation, rule, 
or order issued pursuant thereto, the relevant records in the system of 
records may be referred, as a routine

[[Page 909]]

use, to the agency concerned, whether Federal, State, local, or foreign, 
charged with the responsibility of investigating or prosecuting such 
violation or charged with enforcing or implementing the statute, rule, 
regulation, or order issued pursuant thereto.
    (c) Routine Use--Disclosure When Requesting Information. A record 
from a system of records maintained by a Component may be disclosed as a 
routine use to a Federal, State, or local agency maintaining civil, 
criminal, or other relevant enforcement information or other pertinent 
information, such as current licenses, if necessary to obtain 
information relevant to a Component decision concerning the hiring or 
retention of an employee, the issuance of a security clearance, the 
letting of a contract, or the issuance of a license, grant, or other 
benefit.
    (d) Routine Use--Disclosure of Requested Information. A record from 
a system of records maintained by a Component may be disclosed to a 
Federal agency, in response to its request, in connection with the 
hiring or retention of an employee, the issuance of a security 
clearance, the reporting of an investigation of an employee, the letting 
of a contract, or the issuance of a license, grant, or other benefit by 
the requesting agency, to the extent that the information is relevant 
and necessary to the requesting agency's decision on the matter.
    (e) Routine Use--Congressional Inquiries. Disclosure from a system 
of records maintained by a Component may be made to a congressional 
office from the record of an individual in response to an inquiry from 
the congressional office made at the request of that individual.
    (f) Routine Use--Private Relief Legislation. Relevant information 
contained in all systems of records of the Department of Defense 
published on or before August 22, 1975, will be disclosed to the OMB in 
connection with the review of private relief legislation as set forth in 
OMB Circular A-19 at any stage of the legislative coordination and 
clearance process as set forth in that Circular.
    (g) Routine Use--Disclosures Required by International Agreements. A 
record from a system of records maintained by a Component may be 
disclosed to foreign law enforcement, security, investigatory, or 
administrative authorities to comply with requirements imposed by, or to 
claim rights conferred in, international agreements and arrangements 
including those regulating the stationing and status in foreign 
countries of DoD military and civilian personnel.
    (h) Routine Use--Disclosure to State and Local Taxing Authorities. 
Any information normally contained in Internal Revenue Service (IRS) 
Form W-2 which is maintained in a record from a system of records 
maintained by a Component may be disclosed to State and local taxing 
authorities with which the Secretary of the Treasury has entered into 
agreements under 5 U.S.C. 5516, 5517, and 5520 and only to those State 
and local taxing authorities for which an employee or military member is 
or was subject to tax regardless of whether tax is or was withheld. This 
routine use is in accordance with Treasury Fiscal Requirements Manual 
Bulletin No. 76-07.
    (i) Routine Use--Disclosure to the Office of Personnel Management. A 
record from a system of records subject to the Privacy Act and 
maintained by a Component may be disclosed to the Office of Personnel 
Management (OPM) concerning information on pay and leave, benefits, 
retirement deduction, and any other information necessary for the OPM to 
carry out its legally authorized government-wide personnel management 
functions and studies.
    (j) Routine Use--Disclosure to the Department of Justice for 
Litigation. A record from a system of records maintained by this 
component may be disclosed as a routine use to any component of the 
Department of Justice for the purpose of representing the Department of 
Defense, or any officer, employee or member of the Department in pending 
or potential litigation to which the record is pertinent.
    (k) Routine Use--Disclosure to Military Banking Facilities Overseas. 
Information as to current military addresses and assignments may be 
provided to military banking facilities who provide banking services 
overseas and who are reimbursed by the Government for certain checking 
and loan losses. For personnel separated, discharged, or retired

[[Page 910]]

from the Armed Forces, information as to last known residential or home 
of record address may be provided to the military banking facility upon 
certification by a banking facility officer that the facility has a 
returned or dishonored check negotiated by the individual or the 
individual has defaulted on a loan and that if restitution is not made 
by the individual, the U.S. Government will be liable for the losses the 
facility may incur.
    (l) Routine Use--Disclosure of Information to the General Services 
Administration (GSA). A record from a system of records maintained by 
this component may be disclosed as a routine use to the General Services 
Administration (GSA) for the purpose of records management inspections 
conducted under authority of 44 U.S.C. 2904 and 2906.
    (m) Routine Use--Disclosure of Information to the National Archives 
and Records Administration (NARA). A record from a system of records 
maintained by this component may be disclosed as a routine use to the 
National Archives and Records Administration (NARA) for the purpose of 
records management inspections conducted under authority of 44 U.S.C. 
2904 and 2906.
    (n) Routine Use--Disclosure to the Merit Systems Protection Board. A 
record from a system of records maintained by this component may be 
disclosed as a routine use to the Merit Systems Protection Board, 
including the Office of the Special Counsel for the purpose of 
litigation, including administrative proceedings, appeals, special 
studies of the civil service and other merit systems, review of OPM or 
component rules and regulations, investigation of alleged or possible 
prohibited personnel practices; including administrative proceedings 
involving any individual subject of a DoD investigation, and such other 
functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be 
authorized by law.
    (o) Routine Use--Counterintelligence Purpose. A record from a system 
of records maintained by this component may be disclosed as a routine 
use outside the DoD or the U.S. Government for the purpose of 
counterintelligence activities authorized by U.S. Law or Executive Order 
or for the purpose of enforcing laws which protect the national security 
of the United States.



Sec. 318.15  Rules of conduct

    (a) DTRA personnel shall:
    (1) Take such actions, as considered appropriate, to ensure that 
personal information contained in a system of records, to which they 
have access or are using incident to the conduct of official business, 
shall be protected so that the security and confidentiality of the 
information shall be preserved.
    (2) Not disclose any personal information contained in any system of 
records except as authorized by 32 CFR part 310 or other applicable law 
or regulation. Personnel willfully making such a disclosure when knowing 
the disclosure is prohibited are subject to possible criminal penalties 
and/or administrative sanctions.
    (3) Report any unauthorized disclosure of personal information from 
a system of records or the maintenance of any system of records that are 
not authorized by the Instruction to the DTRA Privacy Act Officer.
    (b) DTRA system managers for each system of records shall:
    (1) Ensure that all personnel who either have access to the system 
of records or who shall develop or supervise procedures for the handling 
of records in the system of records shall be aware of their 
responsibilities for protecting personnel information being collected 
and maintained under the DTRA Privacy Program.
    (2) Promptly notify the Privacy Act Officer of any required new, 
amended, or altered system notices for the system of records.
    (3) Not maintain any official files on individuals, which are 
retrieved by name or other personal identifier without first ensuring 
that a notice for the system of records shall have been published in the 
``Federal Register.'' Any official who willfully maintains a system of 
records without meeting the publication requirements, as prescribed by 5 
U.S.C. 552a, OMB Circular A-130, and 32 CFR part 310, is subject to 
possible criminal penalties and/or administrative sanctions.

[[Page 911]]



Sec. 318.16  Exemption rules.

    (a) Exemption for classified material. All systems of records 
maintained by the Defense Threat Reduction Agency shall be exempt under 
section (k)(1) of 5 U.S.C. 552a, to the extent that the systems contain 
any information properly classified under E.O. 12598 and that is 
required by that E.O. to be kept secret in the interest of national 
defense or foreign policy. This exemption is applicable to parts of all 
systems of records including those not otherwise specifically designated 
for exemptions herein which contain isolated items of properly 
classified information.
    (b) System identifier and name: HDTRA 007, Security Operations.
    (1) Exemption: Portions of this system of records may be exempt from 
the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), (e)(1), 
(e)(4)(G), (H), (I), and (f).
    (2) Authority: 5 U.S.C. 552a(k)(5).
    (3) Reasons: (i) From subsection (c)(3) because it will enable DTRA 
to safeguard certain investigations and relay law enforcement 
information without compromise of the information, and protect the 
identities of confidential sources who might not otherwise come forward 
and who have furnished information under an express promise that the 
sources' identity would be held in confidence (or prior to the effective 
date of the Act, under an implied promise.)
    (ii) From subsection (d)(1) through (d)(4) and (f) because providing 
access to records of a civil investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of security investigations. Providing 
access rights normally afforded under the Privacy Act would provide the 
subject with valuable information that would allow interference with or 
compromise of witnesses or render witnesses reluctant to cooperate; lead 
to suppression, alteration, or destruction of evidence; and result in 
the secreting of or other disposition of assets that would make them 
difficult or impossible to reach in order to satisfy any Government 
claim growing out of the investigation or proceeding.
    (iii) From subsection (e)(1), (e)(4)(G), (H), (I) because it will 
provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information; under an express promise that the sources' identity would 
be held in confidence (or prior to the effective date of the Act, under 
an implied promise.)
    (c) System identifier and name: HDTRA 011, Inspector General 
Investigation Files.
    (1) Exemption: Portions of this system of records may be exempt from 
the provisions of 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); 
(e)(4)(G), (H), and (I); and (f).
    (2) Authority: 5 U.S.C. 552a(k)(2).
    (3) Reasons: (i) From subsection (c)(3) because it will enable DTRA 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective date of the Act, under an implied 
promise.)
    (ii) From subsection (d)(1) through (d)(4) and (f) because providing 
access to records of a civil investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; and result in the secreting of or other disposition of 
assets that would make

[[Page 912]]

them difficult or impossible to reach in order to satisfy any Government 
claim growing out of the investigation or proceeding.
    (iii) From subsection (e)(1), (e)(4)(G), (H), and (I) because it 
will provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).



PART 319_DEFENSE INTELLIGENCE AGENCY PRIVACY PROGRAM--Table of Contents




Sec.
319.1 Authority.
319.2 Purpose.
319.3 Scope.
319.4 Definitions.
319.5 Procedures for requests pertaining to individual records in a 
          record system.
319.6 Disclosure of requested information to individuals.
319.7 Special procedures: Medical records.
319.8 Request for correction or amendment to record.
319.9 Agency review of request for correction or amendment of record.
319.10 Appeal of initial adverse Agency determination for access, 
          correction or amendment.
319.11 Fees.
319.12 General exemptions. [Reserved]
319.13 Specific exemptions.

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

    Source: 51 FR 44064, Dec. 8, 1986, unless otherwise noted. 
Redesignated at 56 FR 56595, Nov. 6, 1991 and 56 FR 57799, Nov. 14, 
1991.



Sec. 319.1  Authority.

    Pursuant to the requirements of section 553 of Title 5 of the United 
States Code, the Defense Intelligence Agency promulgates its rules for 
the implementation of the Privacy Act of 1974, Pub. L. 93-579, 5 U.S.C. 
552a (f) and (k).



Sec. 319.2  Purpose.

    (a) To promulgate rules providing procedures by which individuals 
may exercise their rights granted by the act to:
    (1) Determine whether a Defense Intelligence Agency system of 
records contains a record pertaining to themselves;
    (2) Be granted access to all or portions thereof;
    (3) Request administrative correction or amendment of such records;
    (4) Request an accounting of disclosures from such records; and
    (5) Appeal any adverse determination for access or correction/
amendment of records.
    (b) To set forth Agency policy and fee schedule for cost of 
duplication.
    (c) To identify records subject to the provisions of these rules.
    (d) To specify those systems of records for which the Director, 
Defense Intelligence Agency, claims an exemption.



Sec. 319.3  Scope.

    (a) Any individual who is a citizen of the United States or an alien 
lawfully admitted for permanent residence in the United States may 
submit an inquiry to the Defense Intelligence Agency.
    (b) These rules apply to those systems of records:
    (1) Maintained by the Defense Intelligence Agency;
    (2) For which the Defense Intelligence Agency prescribes the content 
and disposition pursuant to statute or executive order of the President, 
which may be in the physical custody of another Federal agency;
    (3) Not exempted from certain provisions of the act by the Director, 
Defense Intelligence Agency.
    (c) The Defense Intelligence Agency may have physical custody of the 
official records of another Federal agency which exercises dominion and 
control over the records, their content, and access thereto. In such 
cases, the Defense Intelligence Agency maintenance of the records is 
considered subject to the rules of the other Federal agency. Except for 
a request for a determination of the existence of the record, when the 
Defense Intelligence Agency receives

[[Page 913]]

requests related to these records, the DIA will immediately refer the 
request to the controlling agency for all decisions regarding the 
request and will notify the individual making the request of the 
referral.
    (d) Records subject to provisions of the Act which are transferred 
to the Washington National Records Center for storage shall be 
considered to be maintained by the Defense Intelligence Agency. 
Disclosure from such records--to other than an element of the Defense 
Intelligence Agency--can only be made with the prior approval of the 
Defense Intelligence Agency.
    (e) Records subject to provisions of the act which are transferred 
to the National Archives shall be considered to be maintained by the 
National Archives and are no longer records of the Agency.



Sec. 319.4  Definitions.

    (a) All terms used in this part which are defined in 5 U.S.C. 552a 
shall have the same meaning herein.
    (b) As used in this part:
    (1) The term Act means the Privacy Act of 1974, Pub. L. 93-579, 5 
U.S.C. 552a.
    (2) The term Agency means the Defense Intelligence Agency.



Sec. 319.5  Procedures for requests pertaining to individual records 
in a record system.

    (a) An individual seeking notification of whether a system of 
records, maintained by the Defense Intelligence Agency, contains a 
record pertaining to himself/herself and who desires to review, have 
copies made of such records, or to be provided an accounting of 
disclosures from such records, shall submit his or her request in 
writing. Requesters are encouraged to review the systems of records 
notices published by the Agency so as to specifically identify the 
particular record system(s) of interest to be accessed.
    (b) In addition to meeting the requirements set forth in Sec. 319.5 
of this part, the individual seeking notification, review or copies, and 
an accounting of disclosures will provide in writing his or her full 
name, address, social security account number or date of birth and a 
telephone number where the requester can be contacted should questions 
arise concerning his or her request. This information will be used only 
for the purpose of identifying relevant records in response to an 
individual's inquiry. It is further recommended that individuals 
indicate any present or past relationship or affiliations, if any, with 
the Agency and the appropriate dates in order to facilitate a more 
thorough search of the record system specified and any other system 
which may contain information concerning the individual. A signed 
notarized statement may also be required.
    (c) An individual who wishes to be accompanied by another individual 
when reviewing his or her records, must provide the Agency with written 
consent authorizing the Agency to disclose or discuss such records in 
the presence of the accompanying individual.
    (d) A request for medical records must be submitted as set forth in 
Sec. 319.7, of this part.
    (e) Individuals should mail their written request to the Defense 
Intelligence Agency, DSP-1A, Washington, DC 20340-3299 and indicate 
clearly on the outer envelope ``Privacy Act Request''.
    (f) An individual who makes a request on behalf of a minor or legal 
incompetent shall provide a signed notarized statement affirming the 
relationship.
    (g) When an individual wishes to authorize another person access to 
his or her records, the individual shall provide a signed notarized 
statement authorizing and consenting to access by the designated person.
    (h) Except as provided by section 552a(b) of the act, 5 U.S.C. 
552a(b), the written request or prior written consent of the individual 
to whom a record pertains shall be required before such record is 
disclosed to any person or to another agency outside the Department of 
Defense.
    (i) Any person who knowingly and willfully requests or obtains any 
record concerning an individual from this Agency under false pretenses 
shall be

[[Page 914]]

guilty of a misdemeanor and fined not more than $5,000.

[51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991 
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6, 
1991]



Sec. 319.6  Disclosure of requested information to individuals.

    The Defense Intelligence Agency, upon receiving a request for 
notification of the existence of a record or for access to a record, 
shall:
    (a) Determine whether such record exists;
    (b) Determine whether access is available under the Privacy Act;
    (c) Notify the requester of those determinations within 10 days 
(excluding Saturday, Sunday and legal public holidays); and
    (d) Provide access to information pertaining to that person which 
has been determined to be available.



Sec. 319.7  Special procedures: Medical records.

    Medical records, requested pursuant to Sec. 319.5 of this part, 
will be disclosed to the requester unless the disclosure of such records 
directly to the requester could, in the judgment of a physician, have an 
adverse effect on the physical or mental health or safety and welfare of 
the requester or other persons with whom he may have contact. In such an 
instance, the information will be transmitted to a physician named by 
the requester or to a person qualified to make a psychiatric or medical 
determination.

[51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991 
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6, 
1991]



Sec. 319.8  Request for correction or amendment to record.

    (a) An individual may request that the Defense Intelligence Agency 
correct, amend, or expunge any record, or portions thereof, pertaining 
to the requester that he believes to be inaccurate, irrelevant, 
untimely, or incomplete.
    (b) Such requests shall be in writing and may be mailed to DSP-1A as 
indicated in Sec. 319.5.
    (c) The requester shall provide sufficient information to identify 
the record and furnish material to substantiate the reasons for 
requesting corrections, amendments or expurgation.

[51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991 
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6, 
1991]



Sec. 319.9  Agency review of request for correction or amendment of 
record.

    (a) The Agency will acknowledge a request for correction or 
amendment of a record within 10 days (excluding Saturday, Sunday, and 
legal public holidays) of receipt. The acknowledgment will be in writing 
and will indicate the date by which the Agency expects to make its 
initial determination.
    (b) The Agency shall complete its consideration of requests to 
correct or amend records within 30 days (excluding Saturday, Sunday, and 
legal holidays) and inform the requester of its initial determination.
    (c) If it is determined that records should be corrected or amended 
in whole or in part, the Agency shall advise the requester in writing of 
its determination; and correct or amend the records accordingly. The 
Agency shall then advise prior recipients of the records of the fact 
that a correction or amendment was made and provide the substance of the 
change.
    (d) If the Agency determines that a record should not be corrected 
or amended, in whole or in part, as requested by the individual, the 
Agency shall advise the requester in writing of its refusal to correct 
or amend the records and the reasons therefor. The notification will 
inform the requester that the refusal may be appealed administratively 
and will advise the individual of the procedures for such appeals.



Sec. 319.10  Appeal of initial adverse Agency determination for access, 
correction or amendment.

    (a) An individual who disagrees with the denial or partial denial of 
his or her request for access, correction, or amendment of Agency 
records pertaining to himself/herself, may file a request for 
administrative review of such refusal within 30 days after the

[[Page 915]]

date of notification of the denial or partial denial.
    (b) Such requests should be in writing and may be mailed to RTS-1 as 
indicated in Sec. 319.5.
    (c) The requester shall provide a brief written statement setting 
forth the reasons for his or her disagreement with the initial 
determination and provide such additional supporting material as the 
individual feels necessary to justify his or her appeal.
    (d) Within 30 days (excluding Saturday, Sunday, and legal public 
holidays) of the receipt of request for review, the Agency shall advise 
the individual of the final disposition of his or her request.
    (e) In those cases where the initial determination is reversed, the 
individual will be so informed and the Agency will take appropriate 
action.
    (f) In those cases where the initial determinations are sustained, 
the individual shall be advised:
    (1) In the case of a request for access to a record, of the 
individual's right to seek judicial review of the Agency refusal for 
access.
    (2) In the case of a request to correct or amend the record:
    (i) Of the individual's right to file with record in question a 
concise statement of his or her reasons for disagreeing with the 
Agency's decision,
    (ii) Of the procedures for filing a statement of disagreement, and
    (iii) Of the individual's right to seek judicial review of the 
Agency's refusal to correct or amend a record.

[51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991 
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6, 
1991]



Sec. 319.11  Fees.

    (a) The schedule of fees chargeable is contained at Sec. 286.60 et 
seq. As a component of the Department of Defense, the applicable 
published Departmental rules and schedules with respect to fees will 
also be the policy of DIA.
    (b) Current employees of the Agency will not be charged for the 
first copy of a record provided by the Agency.
    (c) In the absence of an agreement to pay required anticipated 
costs, the time for responding to a request begins on resolution of this 
agreement to pay.
    (d) The fees may be paid by check, draft or postal money order 
payable to the Treasurer of the United States. Remittance will be 
forwarded to the office designated in Sec. 319.5(e).

[51 FR 44064, Dec. 8, 1986. Redesignated at 56 FR 56595, Nov. 6, 1991 
and 56 FR 57799, Nov. 14, 1991, and amended at 56 FR 56595, Nov. 6, 
1991]



Sec. 319.12  General exemptions. [Reserved]



Sec. 319.13  Specific exemptions.

    (a) All systems of records maintained by the Director Intelligence 
Agency shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains 
any information properly classified under Executive order to be kept 
secret in the interest of national defense or foreign policy. This 
exemption, which may be applicable to parts of all systems of records, 
is necessary because certain record systems not specifically designated 
for exemption may contain isolated information which has been properly 
classified.
    (b) The Director, Defense Intelligence Agency, designated the 
systems of records listed below for exemptions under the specified 
provisions of the Privacy Act of 1974, as amended (Pub. L. 93-579):
    (c) System identification and name: LDIA 0271, Investigations and 
Complaints.
    (1) Exemption: Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (e)(4)(I).
    (2) Authority: 5 U.S.C. 552a(k) (2) and (5).
    (3) Reasons: The reasons for asserting these exemptions are to 
ensure the integrity of the Inspector General process within the Agency. 
The execution requires that information be provided in a free and open 
manner without fear of retribution or harassment in order to facilitate 
a just, thorough and timely resolution of the complaint or inquiry. 
Disclosures from this system can enable individuals to conceal their 
wrongdoing or mislead the course of

[[Page 916]]

the investigation by concealing, destroying or fabricating evidence or 
documents. Also, disclosures can subject sources and witnesses to 
harassment or intimidation which may cause individuals not to seek 
redress for wrongs through Inspector General channels for fear of 
retribution or harassment.
    (d) System identification and name: LDIA 0275, DoD Hotline 
Referrals.
    (1) Exemption: Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (e)(4)(I).
    (2) Authority: 5 U.S.C. 552a(k) (2) and (5).
    (3) Reason: The reasons for asserting these exemptions are to ensure 
that informants can report instances of fraud and mismanagement without 
fear of reprisal or unauthorized disclosure of their identity. The 
execution of this function requires that information be provided in a 
free and open manner without fear of retribution of harassment in order 
to facilitate a just, thorough and timely resolution of the case. These 
records are privileged Director, DIA, documents and information 
contained therein is not routinely released or disclosed to anyone.
    (e) System identification and name: LDIA 0660, Security Files.
    (1) Exemption: Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (e)(4)(I).
    (2) Authority: 5 U.S.C. 552a(k) (2) and (5).
    (3) Reason: The reasons for asserting these exemptions are to ensure 
the integrity of the adjudication process used by the Agency to 
determine the suitability, eligibility or qualification for Federal 
service with the Agency and to make determinations concerning the 
questions of access to classified materials and activities. The proper 
execution of this function requires that the Agency have the ability to 
obtain candid and necessary information in order to fully develop or 
resolve pertinent information developed in the process. Potential 
sources, out of fear or retaliation, exposure or other action, may be 
unwilling to provide needed information or may not be sufficiently frank 
to be a value in personnel screening, thereby seriously interfering with 
the proper conduct and adjudication of such matters.
    (f) System identification and name: LDIA 0800, Operation Record 
System.
    (1) Exemption: Any portion of this record system which falls within 
the provisions of 5 U.S.C. 552a(k) (2) and (5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (e)(4)(I).
    (2) Authority: 5 U.S.C. 552a(k) (2) and (5).
    (3) Reason: The reasons for asserting these exemptions are to ensure 
the integrity of ongoing foreign intelligence collection and/or training 
activities conducted by the Defense Intelligence Agency and the 
Department of Defense. The execution of these functions requires that 
information in response to national level intelligence requirements be 
provided in a free and open manner without fear of retribution or 
unauthorized disclosure. Disclosures from this system can jeopardize 
sensitive sources and methodology.

[56 FR 56595, Nov. 6, 1991]



PART 320_NATIONAL GEOSPATIAL-INTELLIGENCE AGENCY PRIVACY--Table of 
Contents




Sec.
320.1 Purpose and scope.
320.2 Definitions.
320.3 Responsibilities.
320.4 Procedures for requesting information.
320.5 Disclosure of requested information.
320.6 Requests for correction or amendment to record.
320.7 Agency review of request for correction or amendment of record.
320.8 Appeal of initial adverse agency determination on correction or 
          amendment.
320.9 Disclosure of record to person other than the individual to whom 
          it pertains.
320.10 Fees.
320.11 Penalties.
320.12 Exemptions.

    Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).

    Source: 66 FR 52681, Oct. 17, 2001, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 320 appear at 69 FR 
2066, Jan. 14, 2004.

[[Page 917]]



Sec. 320.1  Purpose and scope.

    (a) This part is published pursuant to the Privacy Act of 1974, as 
amended (5 U.S.C. 552a), (hereinafter the ``Privacy Act''). This part:
    (1) Establishes or advises of the procedures whereby an individual 
can:
    (i) Request notification of whether the National Geospatial-
Intelligence Agency (NGA) maintains or has disclosed a record pertaining 
to him in any nonexempt system of records,
    (ii) Request a copy or other access to such a record or to an 
accounting of its disclosure,
    (iii) Request that the record be amended and
    (iv) Appeal any initial adverse determination of any such request;
    (2) Specifies those systems of records which the Director, 
Headquarters NGA has determined to be exempt from the procedures 
established by this regulation and from certain provisions of the 
Privacy Act. NGA policy encompasses the safeguarding of individual 
privacy from any misuse of NGA records and the provision of the fullest 
access practicable to individuals to NGA records concerning them.



Sec. 320.2  Definitions.

    As used in this part:
    (a) Appellate authority (AA). A NGA employee who has been granted 
authority to review the decision of the Initial Denial Authority (IDA) 
that has been appealed by the Privacy Act requester and make the appeal 
determination for NGA on the release ability of the records in question.
    (b) Individual. A living person who is a citizen of the United 
States or an alien lawfully admitted for permanent residence. The parent 
of a minor or the legal guardian of any individual also may act on 
behalf of an individual. Corporations, partnerships, sole 
proprietorships, professional groups, businesses, whether incorporated 
or unincorporated, and other commercial entities are not 
``individuals''.
    (c) Initial denial authority (IDA). A NGA employee, or designee, who 
has been granted authority to make an initial determination for NGA that 
records requested in a Privacy Act request should be withheld from 
disclosure or release.
    (d) Maintain. Includes maintain, collect, use or disseminate.
    (e) Personal information. Information about an individual that 
identifies, relates to or is unique to, or describes him or her; e.g., a 
social security number, age, military rank, civilian grade, marital 
status, race, or salary, home/office phone numbers, etc.
    (f) Record. Any item, collection, or grouping of information, 
whatever the storage media (e.g., paper, electronic, etc.), about an 
individual that is maintained by NGA, including, but not limited to 
education, financial transactions, medical history, criminal or 
employment history, and that contains the individual's name or the 
identifying number, symbol or other identifying particulars assigned to 
the individual such as a finger or voice print or a photograph.
    (g) Routine use. The disclosure of a record outside the Department 
of Defense for a use that is compatible with the purpose for which the 
information was collected and maintained by the Department of Defense. 
The routine use must be included in the published system notice for the 
system of records involved.
    (h) System of records. A group of records under the control of NGA 
from which personal information is retrieved by the individual's name or 
by some identifying number, symbol, or other identifying particular 
assigned to the individual.
    (i) System manger. The NGA official who is responsible for the 
operation and management of a system of records.



Sec. 320.3  Responsibilities.

    (a) Director of NGA:
    (1) Implements the NGA privacy program.
    (2) Designates the Director of the Public Affairs Office as the NGA 
Initial Denial Authority;
    (3) Designates the Chief of Staff as the Appellate Authority.
    (4) Designates the General Counsel as the NGA Privacy Act Officer 
and the principal point of contact for matters involving the NGA privacy 
program.
    (b) NIMA General Counsel:
    (1) Oversees systems of records maintained throughout NIMA, 
administered

[[Page 918]]

by Information Services. This includes coordinating all notices of new 
systems of records and changes to existing systems for publication in 
the Federal Register.
    (2) Coordinates all denials of requests for access to or amendment 
of records.
    (3) Assesses and collects fees for costs associated with processing 
Privacy Act requests and approves or denies requests for fee waivers. 
Fees collected are forwarded through Financial Management Directorate to 
the U.S. Treasury.
    (4) Prepares the annual report to the Defense Privacy Office.
    (5) Oversees investigations of allegations of unauthorized 
maintenance, disclosure, or destruction of records.
    (6) Conducts or coordinates Privacy Act training for NGA personnel 
as needed, including training for public affairs officers and others who 
deal with the public and news media.
    (c) NIMA System Managers:
    (1) Ensure that all personnel who either have access to a system of 
records or who are engaged in developing or supervising procedures for 
handling records in a system of records are aware of their 
responsibilities for protecting personal information.
    (2) Prepare notices of new systems of records and changes to 
existing systems for publication in the Federal Register.
    (3) Ensure that no records subject to this part are maintained for 
which a systems notice has not been published.
    (4) Respond to requests by individuals for access, correction, or 
amendment to records maintained pursuant to the NGA privacy program.
    (5) Provide recommendations to General Counsel for responses to 
requests from individuals for access, correction, or amendment to 
records.
    (6) Safeguard records to ensure that they are protected from 
unauthorized alteration or disclosure.
    (7) Dispose of records in accordance with accepted records 
management practices to prevent inadvertent compromise. Disposal methods 
such as tearing, burning, melting, chemical decomposition, pulping, 
pulverizing, shredding, or mutilation are considered adequate if the 
personal data is rendered unrecognizable or beyond reconstruction.



Sec. 320.4  Procedures for requesting information.

    (a) Upon request in person or by mail, any individual, as defined in 
Sec. 320.2, shall be informed whether or not any NGA system of records 
contains a record pertaining to him.
    (b) Any individual requesting such information in person may appear 
at NGA General Counsel Office (refer to the NGA address list at 
paragraph (e) of this section) or at the NGA office thought to maintain 
the record in question and shall provide:
    (1) Information sufficient to identify the record, e.g., the 
individual's own name, date of birth, place of birth, and, if possible, 
an indication of the type of record believed to contain information 
concerning the individual, and
    (2) Acceptable identification to verify the individual's identity, 
e.g., driver's license, employee identification card or Medicare card.
    (c) Any individual requesting such information by mail shall address 
the request to the Office of General Counsel (refer to paragraph (e) of 
this section) or NGA office thought to maintain the record in question 
and shall include in such request the following:
    (1) Information sufficient to identify the record, e.g., the 
individual's own name, date of birth, place of birth, and, if possible, 
an indication of the type of record believed to contain information 
concerning the individual, and
    (2) A notarized statement or unsworn declaration in accordance with 
28 U.S.C. 1746 to verify the individual's identity, if, in the opinion 
of the NGA system manager, the sensitivity of the material involved 
warrants.
    (d) NGA procedures on requests for information. Upon receipt of a 
request for information made in accordance with these regulations, 
notice of the existence or nonexistence of any records described in such 
requests will be furnished to the requesting party within ten working 
days of receipt.
    (e) Written requests for access to records should be sent to NGA 
Bethesda, ATTN: NGA/GC, Mail Stop D-10, 4600 Sangamore Road, Bethesda, 
MD 20816-5003.

[[Page 919]]

    (f) Requests for information made under the Freedom of Information 
Act are processed in accordance with ``DoD Freedom of Information Act 
Program Regulation'' (32 CFR part 286).
    (g) Requests for personal information from the Government Accounting 
Office (GAO) are processed in accordance with DoD Directive 7650.1 \1\ 
``GAO Access to Records''.
---------------------------------------------------------------------------

    \1\ Copies may be obtained via Internet at http://www.dtic.mil/whs/
directives.
---------------------------------------------------------------------------



Sec. 320.5  Disclosure of requested information.

    (a) Upon request by an individual made in accordance with the 
procedures set forth in this section, such individual shall be granted 
access to any pertinent record which is contained in a nonexempt NGA 
system of records. However, nothing in this section shall allow an 
individual access to any information compiled by NGA in reasonable 
anticipation of a civil or criminal action or proceeding.
    (b) Procedures for requests for access to records. Any individual 
may request access to a pertinent NGA record in person or by mail.
    (1) Any individual making such request in person shall appear at 
Office of General Counsel, NGA Bethesda, ATTN: NGA/GC, Mail Stop D-10, 
4600 Sangamore Road, Bethesda, MD 20816-5003, and shall provide 
identification to verify the individuals' identity, e.g., driver's 
license, employee identification card, or Medicare card.
    (2) Any individual making a request for access to records by mail 
shall address such request to the Office of General Counsel, NIMA 
Bethesda, ATTN: NGA/GC, Mail Stop D-10, 4600 Sangamore Road, Bethesda, 
MD 20816-5003; and shall include therein a signed, notarized statement, 
or an unsworn statement or declaration in accordance with 28 U.S.C. 
1746, to verify identity.
    (3) Any individual requesting access to records under this section 
in person may be accompanied by a person of the individual's own 
choosing while reviewing the record requested. If an individual elects 
to be so accompanied, said individual shall give notice of such election 
in the request and shall provide a written statement authorizing 
disclosure of the record in the presence of the accompanying person. 
Failure to so notify NGA in a request for access shall be deemed to be a 
decision by the individual not to be accompanied.
    (c) NGA determination of requests for access.
    (1) Upon receipt of a request made in accordance with this section, 
the NGA Office of General Counsel or NGA office having responsibility 
for maintenance of the record in question shall release the record, or 
refer it to an Initial Denial Authority, who shall:
    (i) Determine whether such request shall be granted.
    (ii) Make such determination and provide notification within 30 
working days after receipt of such request.
    (iii) Notify the individual that fees for reproducing copies of 
records will be assessed and should be remitted before the copies may be 
delivered. Fee schedule and rules for assessing fees are contained in 
Sec. 320.9.
    (iv) Requests for access to personal records may be denied only by 
an agency official authorized to act as an Initial Denial Authority or 
Final Denial Authority, after coordination with the Office of General 
Counsel.
    (2) If access to a record is denied because such information has 
been compiled by NGA in reasonable anticipation of a civil or criminal 
action or proceeding, the individual will be notified of such 
determination and his right to judicial appeal under 5 U.S.C. 552a(g).
    (d) Manner of providing access.
    (1) If access is granted, the individual making the request shall 
notify NGA whether the records requested are to be copied and mailed.
    (2) If the records are to be made available for personal inspection 
the individual shall arrange for a mutually agreeable time and place for 
inspection of the record. NIMA reserves the right to require the 
presence of a NIMA officer or employee during personal inspection of any 
record pursuant to this section and to request of the individual that a 
signed acknowledgment of the fact be provided that access to the record 
in question was granted by NIMA.

[[Page 920]]



Sec. 320.6  Request for correction or amendment to record.

    (a) Any individual may request amendment of a record pertaining to 
said individual.
    (b) After inspection of a pertinent record, the individual may file 
a request in writing with the NGA Office of General Counsel for 
amendment. Such requests shall specify the particular portions of the 
record to be amended, the desired amendments and the reasons, supported 
by documentary proof, if available.



Sec. 320.7  Agency review of request for correction or amendment of 
record.

    (a) Not later than 10 working days after receipt of a request to 
amend a record, in whole or in part, the NGA Office of General Counsel, 
or NGA office having responsibility for maintenance of the record in 
question, shall correct any portion of the record which the individual 
demonstrates is not accurate, relevant, timely or complete, and 
thereafter either inform the individual of such correction or process 
the request for denial.
    (b) Denials of requests for amendment of a record will be made only 
by an agency official authorized to act as an Initial Denial Authority, 
after coordination with the Office of General Counsel. The denial letter 
will inform the individual of the denial to amend the record setting 
forth the reasons therefor and notifying the individual of his right to 
appeal the decision to NGA.
    (c) Any person or other agency to whom the record has been 
previously disclosed shall be informed of any correction or notation of 
dispute with respect to such records.
    (d) These provisions for amending records are not intended to permit 
the alteration of evidence previously presented during any 
administrative or quasi-judicial proceeding, such as an employee 
grievance case. Any changes in such records should be made only through 
the established procedures for such cases. Further, these provisions are 
not designed to permit collateral attack upon what has already been the 
subject of an administrative or quasi-judicial action. For example, an 
individual may not use this procedure to challenge the final decision on 
a grievance, but the individual would be able to challenge the fact that 
such action has been incorrectly recorded in his file.



Sec. 320.8  Appeal of initial adverse agency determination on correction 
or amendment.

    (a) An individual whose request for amendment of a record pertaining 
to him may further request a review of such determination in accordance 
with this section.
    (b) Not later than 30 working days following receipt of notification 
of denial to amend, an individual may file an appeal of such decision 
with NGA. The appeal shall be in writing, mailed or delivered to NGA, 
ATTN: Mail Stop D-10, 4600 Sangamore Road, Bethesda, MD 20816-5003. The 
appeal must identify the records involved, indicate the dates of the 
request and adverse determination, and indicate the express basis for 
that determination. In addition, the letter of appeal shall state 
briefly and succinctly the reasons why the adverse determination should 
be reversed.
    (c) Upon appeal from a denial to amend a record the NGA Appellate 
Authority or designee shall make a determination whether to amend the 
record and must notify the individual of that determination by mail, not 
later than 10 working days after receipt of such appeal, unless extended 
pursuant to paragraph (d) of this section.
    (1) The Appellate Authority or designee shall also notify the 
individual of the provisions of the Privacy Act of 1974 regarding 
judicial review of the NGA Appellate Authority's determination.
    (2) If on appeal the denial to amend the record is upheld, the 
individual shall be permitted to file a statement setting forth the 
reasons for disagreement with the Appellate Authority's determination 
and such statement shall be appended to the record in question.
    (d) The Appellate Authority or designee may extend up to 30 days the 
time period in which to make a determination on an appeal from denial to 
amend a record for the reason that a fair and equitable review cannot be

[[Page 921]]

completed within the prescribed time period.



Sec. 320.9  Disclosure of record to person other than the individual to 
whom it pertains.

    (a) No officer or employee of NGA will disclose any record which is 
contained in a system of records, by any means of communication to any 
person or agency within or outside the Department of Defense without the 
request or consent of the individual to whom the record pertains, except 
as described in to 32 CFR 310.41; Appendix C to part 310 of this 
chapter; and/or a NGA Privacy Act system of records notice.
    (b) Any such record may be disclosed to any person or other agency 
only upon written request, of the individual to whom the record 
pertains.
    (c) In the absence of a written consent from the individual to whom 
the record pertains, such record may be disclosed only provided such 
disclosure is:
    (1) To those officers and employees of the DoD who have a need for 
the record in the performance of their duties.
    (2) Required under the Freedom of Information Act (32 CFR part 286).
    (3) For a routine use established within the system of records 
notice.
    (4) To the Bureau of Census for purposes of planning or carrying out 
a census or survey or related activity pursuant to the provisions of 
title 13.
    (5) To a recipient who has provided the NGA with adequate advance 
written assurance that the record will be used solely as a statistical 
research or reporting record and the record is transferred in a form 
that is not individually identifiable and will not be used to make any 
decisions about the rights, benefits or entitlements of an individual.
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government or for evaluation by the 
Administrator of the General Services Administration or his designee to 
determine whether the record has such value.
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the U.S. for a civil or 
criminal law enforcement activity authorized by law, provided the head 
of the agency or instrumentality has made a prior written request to the 
Director, NGA specifying the particular record and the law enforcement 
activity for which it is sought.
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual, if upon such disclosure 
notification is transmitted to the last known address of such 
individual.
    (9) To either house of Congress, and, to the extent of the matter 
within its jurisdiction, any committee or subcommittee or joint 
committee of Congress.
    (10) To the Comptroller General or any of his authorized 
representatives in the course of the performance of the duties of the 
GAO.
    (11) Under an order of a court of competent jurisdiction.
    (12) To a consumer reporting agency in accordance with section 
3711(f) of title 31.
    (d) Except for disclosures made pursuant to paragraphs (c)(1) and 
(2) of this section, an accurate accounting will be kept of the data, 
nature and purpose of each disclosure of a record to any person or 
agency, and the name and address of the person or agency to whom the 
disclosure was made. The accounting of disclosures will be made 
available for review by the subject of a record at his request except 
for disclosures made pursuant to paragraph (c)(7) of this section. If an 
accounting of disclosure has been made, any person or agency contained 
therein will be informed of any correction or notation of dispute made 
pursuant to section 320.6 of this part.



Sec. 320.10  Fees.

    Individuals may request copies for retention of any documents to 
which they are granted access to NGA records pertaining to them. 
Requesters will not be charged for the first copy of any records 
provided; however, duplicate copies will require a charge to cover costs 
of reproduction. Such charges will be computed in accordance with 32 CFR 
part 310.

[[Page 922]]



Sec. 320.11  Penalties.

    The Privacy Act of 1974 (5 U.S.C. 552a(i)(3)) makes it a misdemeanor 
subject to a maximum fine of $5,000, to knowingly and willfully request 
or obtain any record concerning an individual under false pretenses. The 
Act also establishes similar penalties for violations by NGA employees 
of the Act or regulations established thereunder.



Sec. 320.12  Exemptions.

    (a) Exempt systems of record. All systems of records maintained by 
the NGA and its components shall be exempt from the requirements of 5 
U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the 
system contains any information properly classified under Executive 
Order 12958 and that is required by Executive Order to be withheld in 
the interest of national defense or foreign policy. This exemption is 
applicable to parts of all systems of records, including those not 
otherwise specifically designated for exemptions herein, which contain 
isolated items of properly classified information.
    (b) System identifier and name: B0210-07, Inspector General 
Investigative and Complaint Files.
    (1) Exemptions: (i) Investigative material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (2) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (3) Reasons: (i) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NGA or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (ii) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).

[[Page 923]]

    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NGA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of 
1974, NGA will grant access to nonexempt material in the records being 
maintained. Disclosure will be governed by NGA's Privacy Regulation, but 
will be limited to the extent that the identity of confidential sources 
will not be compromised; subjects of an investigation of an actual or 
potential criminal or civil violation will not be alerted to the 
investigation; the physical safety of witnesses, informants and law 
enforcement personnel will not be endangered; the privacy of third 
parties will not be violated; and that the disclosure would not 
otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated in this paragraph. The decisions to release information from 
these systems will be made on a case-by-case basis.

[66 FR 52681, Oct. 17, 2001, as amended at 67 FR 55724, Aug. 30, 2002]



PART 321_DEFENSE SECURITY SERVICE PRIVACY PROGRAM--Table of Contents




Sec.
321.1 Purpose and applicability.
321.2 Definitions.
321.3 Information and procedures for requesting notification.
321.4 Requirements for identification.
321.5 Access by subject individuals.
321.6 Medical records.
321.7 Request for correction or amendment.
321.8 DSS review of request for amendment.
321.9 Appeal of initial amendment decision.
321.10 Disclosure to other than subject.
321.11 Fees.
321.12 Penalties.
321.13 Exemptions.
321.14 DSS implementation policies.

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

    Source: 64 FR 49660, Sept. 14, 1999, unless otherwise noted.



Sec. 321.1  Purpose and applicability.

    (a) This part establishes rules, policies and procedures for the 
disclosure of personal records in the custody of the Defense Security 
Service (DSS) to the individual subjects, the handling of requests for 
amendment or correction of such records, appeal and review of DSS 
decisions on these matters, and the application of general and specific 
exemptions, under the provisions of the Privacy Act of 1974. It also 
prescribes other policies and procedures to effect compliance with the 
Privacy Act of 1974 and DoD Directive 5400.11 \1\.
---------------------------------------------------------------------------

    \1\ Copies may be obtained via internet at http://web7.whs.osd.mil/
corres.htm
---------------------------------------------------------------------------

    (b) The procedures set forth in this part do not apply to DSS 
personnel seeking access to records pertaining to themselves which 
previously have been available. DSS personnel will continue to be 
granted ready access to their personnel, security, and other records by 
making arrangements directly with the maintaining office. DSS personnel 
should contact the Office of Freedom of Information and Privacy, DSSHQ, 
for access to investigatory records pertaining to themselves or any 
assistance in obtaining access to other records pertaining to 
themselves, and may follow the procedures outlined in these rules in any 
case.



Sec. 321.2  Definitions.

    (a) All terms used in this part which are defined in 5 U.S.C. 552a 
shall have the same meaning herein.
    (b) As used in this part, the term agency means the Defense Security 
Service.



Sec. 321.3  Information and procedures for requesting notification.

    (a) General. Any individual may request and receive notification of 
whether he is the subject of a record in any system of records 
maintained by DSS using the information and procedures described in this 
section.

[[Page 924]]

    (1) Paragraphs (b) and (c) of this section give information that 
will assist an individual in determining in what systems of DSS records 
(if any) he may be the subject. This information is presented as a 
convenience to the individual in that he may avoid consulting the 
lengthy systems notices elsewhere in the Federal Register.
    (2) Paragraph (d) of this section details the procedure an 
individual should use to contact DSS and request notification. It will 
be helpful if the individual states what his connection with DSS has or 
may have been, and about what record system(s) he is inquiring. Such 
information is not required, but its absence may cause some delay.
    (b) DSS Records Systems. A list of DSS records systems is available 
by contacting Defense Security Service, Office of FOI and Privacy, 1340 
Braddock Place, Alexandria, VA, 22314-1551.
    (c) Categories of individuals in DSS Record Systems. (1) Any person 
who is the subject or co-subject of an ongoing or completed 
investigation by DSS should have an investigative case file/record in 
system V5-01, if the record meets retention criteria. An index to such 
files should be in V5-02.
    (2) If an individual has ever made a formal request to DSS under the 
Freedom of Information Act or the Privacy Act of 1974, a record 
pertaining to that request under the name of the requester, or subject 
matter, will be in system V1-01.
    (3) Persons of Counterintelligence interest who have solicited from 
industrial contractors/DoD installations information which may appear to 
be sensitive in nature may have a record in system V5-04.
    (4) Individuals who have been applicants for employment with DSS, or 
nominees for assignment to DSS, but who have not completed their DSS 
affiliation, may be subjects in systems V4-04, V5-01, V5-02, V5-03, or 
V6-01.
    (5) Any individual who is a subject, victim or cross-referenced 
personally in an investigation by an investigative element of any DoD 
component, may be referenced in the Defense Clearance and Investigations 
Index, system V5-02, in an index to the location, file number, and 
custodian of the case record.
    (6) Individuals who have ever presented a complaint to or have been 
connected with a DSS Inspector General inquiry may be subjects of 
records in system V2-01.
    (7) If an individual has ever attended the Defense Industrial 
Security Institute or completed training with the DSS Training Office he 
should be subject of a record in V7-01.
    (8) If an individual has ever been a guest speaker or instructor at 
the Defense Industrial Security Institute, he should be the subject of a 
record in V7-01.
    (9) If an individual is an employee or major stockholder of a 
government contractor or other DoD-affiliated company or agency and has 
been issued, now possesses or has been processed for a security 
clearance, he may be subject to a record in V5-03.
    (d) Procedures. The following procedures should be followed to 
determine if an individual is a subject of records maintained by DSS, 
and to request notification and access.
    (1) Individuals should submit inquiries in person or by mail to the 
Defense Security Service, Office of FOI and Privacy, 1340 Braddock 
Place, Alexandria, VA 22314-1651. Inquiries by personal appearance 
should be made Monday through Friday from 8:30 to 11:30 a.m. and 1:00 to 
4:00 p.m. The information requested in Sec. 321.4 must be provided if 
records are to be accurately identified. Telephonic requests for records 
will not be honored. In a case where the system of records is not 
specified in the request, only systems that would reasonably contain 
records of the individual will be checked, as described in paragraph (b) 
of this section.
    (2) Only the Director or Chief, Office of FOI and Privacy may 
authorize exemptions to notification of individuals in accordance with 
Sec. 321.13.



Sec. 321.4  Requirements for identification.

    (a) General. Only upon proper identification, made in accordance 
with the provisions of this section, will any individual be granted 
notification concerning and access to all releasable records pertaining 
to him which are maintained in a DSS system.

[[Page 925]]

    (b) Identification. Identification of individuals is required both 
for accurate record identification and to verify identity in order to 
avoid disclosing records to unauthorized persons. Individuals who 
request notification of, access to, or amendment of records pertaining 
to themselves, must provide their full name (and additional names such 
as aliases, maiden names, alternate spellings, etc., if a check of these 
variants is desired), date and place of birth, and social security 
number (SSN).
    (1) Where reply by mail is requested, a mailing address is required, 
and a telephone number is recommended to expedite certain matters. For 
military requesters residing in the United States, home address or P.O. 
Box number is preferred in lieu of duty assignment address.
    (2) Signatures must be notarized on requests received by mail. 
Exceptions may be made when the requester is well known to releasing 
officials. For requests made in person, a photo identification card, 
such as military ID, driver's license or building pass, must be 
presented.
    (3) While it is not required as a condition of receiving 
notification, in many cases the SSN may be necessary to obtain an 
accurate search of DCII (V5-02) records.
    (c) A DSS Form 30 (Request for Notification of/Access to Personal 
Records) will be provided to any individual inquiring about records 
pertaining to himself whose mailed request was not notarized. This form 
is also available at the DSS Office of FOI and Privacy, 1340 Braddock 
Place, Alexandria, VA 22314-1651, for those who make their requests in 
person.



Sec. 321.5  Access by subject individuals.

    (a) General. (1) Individuals may request access to records 
pertaining to themselves in person or by mail in accordance with this 
section. However, nothing in this section shall allow an individual 
access to any information compiled or maintained by DSS in reasonable 
anticipation of a civil or criminal action or proceeding, or otherwise 
exempted under the provisions of Sec. 321.13.
    (2) A request for a pending personnel security investigation will be 
held in abeyance until completion of the investigation and the requester 
will be so notified.
    (b) Manner of access. (1) Requests by mail or in person for access 
to DSS records should be made to the DSS Office of FOI and Privacy, 1340 
Braddock Place, Alexandria, VA 22314-1651.
    (2) Any individual who makes a request for access in person shall:
    (i) Provide identification as specified in Sec. 321.4.
    (ii) Complete and sign a request form.
    (3) Any individual making a request for access to records by mail 
shall include a signed and notarized statement to verify his identity, 
which may be the DSS request form if he has received one.
    (4) Any individual requesting access to records in person may be 
accompanied by an identified person of his own choosing while reviewing 
the record. If the individual elects to be accompanied, he shall make 
this known in his written request, and include a statement authorizing 
disclosure of the record contents to the accompanying person. Without 
written authorization of the subject individual, records will not be 
disclosed to third parties accompanying the subject.
    (5) During the course of official business, members of DSS field 
elements may be given access to records maintained by the field 
elements/Operations Center without referral to the Office of FOI and 
Privacy. An account of such access will be kept for reporting purposes.
    (6) In all requests for access, the requester must state whether he 
or she desires access in person or mailed copies of records. During 
personal access, where copies are made for retention, a fee for 
reproduction and postage may be assessed as provided in Sec. 321.11. 
Where copies are mailed because personal appearance is impractical, 
there will be no fee.
    (7) All individuals who are not affiliates of DSS will be given 
access to records, if authorized, in the Office of FOI and Privacy, or 
by means of mailed copies.

[[Page 926]]



Sec. 321.6  Medical records.

    General. Medical records that are part of DSS records systems will 
generally be included with those records when access is granted to the 
subject to which they pertain. However, if it is determined that such 
access could have an adverse effect upon the individual's physical or 
mental health, the medical record in question will be released only to a 
physician named by the requesting individual.



Sec. 321.7  Request for correction or amendment.

    (a) General. Upon request and proper identification by any 
individual who has been granted access to DSS records pertaining to 
himself or herself, that individual may request, either in person or 
through the mail, that the record be amended. Such a request must be 
made in writing and addressed to the Defense Security Service, Office of 
FOI and Privacy, 1340 Braddock Place, Alexandria, VA 22314-1651.
    (b) Content. The following information must be included to insure 
effective action on the request:
    (1) Description of the record. Requesters should specify the number 
of pages and documents, the titles of the documents, form numbers if 
there are any, dates on the documents and names of individuals who 
signed them. Any reasonable description of the document is acceptable.
    (2) Description of the items to be amended. The description of the 
passages, pages or documents to be amended should be as clear and 
specific as possible.
    (i) Page, line and paragraph numbers should be cited where they 
exist.
    (ii) A direct quotation of all or a portion of the passage may be 
made if it isn't otherwise easily identifiable. If the passage is long, 
a quotation of its beginning and end will suffice.
    (iii) In appropriate cases, a simple substantive request may be 
appropriate, e.g., `delete all references to my alleged arrest in July 
1970.'
    (iv) If the requester has received a copy of the record, he may 
submit an annotated copy of documents he wishes amended.
    (3) Type of amendment. The requester must clearly state the type of 
amendment he is requesting.
    (i) Deletion or expungement, i.e., a complete removal from the 
record of data, sentences, passages, paragraphs or documents.
    (ii) Correction of the information in the record to make it more 
accurate, e.g., rectify mistaken identities, dates, data pertaining to 
the individual, etc.
    (iii) Additions to make the record more relevant, accurate or timely 
may be requested.
    (iv) Other changes may be requested; they must be specifically and 
clearly described.
    (4) Reason for amendment. Requests for amendment must be based on 
specific reasons, included in writing. Categories of reasons are as 
follows:
    (i) Accuracy. Amendment may be requested where matters of fact are 
believed incorrectly recorded, e.g., dates, names, addresses, 
identification numbers, or any other information concerning the 
individual. The request, whenever possible, should contain the accurate 
information, copies of verifying documents, or indication of how the 
information can be verified.
    (ii) Relevance. Amendment may be requested when information in a 
record is believed not to be relevant or necessary to the purposes of 
the record system.
    (iii) Timeliness. Amendment may be requested when information is 
thought to be so old as to no longer be pertinent to the stated purposes 
of the records system. It may also be requested when there is recent 
information of a pertinent type that is not included in the record.
    (iv) Completeness. Amendment may be requested where information in a 
record is incomplete with respect to its purpose. The data thought to 
have been omitted should be included or identified with the request.
    (v) Fairness. Amendment may be requested when a record is thought to 
be unfair concerning the subject, in terms of the stated purposes of the 
record. In such cases, a source of additional information to increase 
the fairness of the record should be identified where possible.

[[Page 927]]

    (vi) Other reasons. Reasons for requesting amendment are not limited 
to those cited above. The content of the records is authorized in terms 
of their stated purposes which should be the basis for evaluating them. 
However, any matter believed appropriate may be submitted as a basis of 
an amendment request.
    (vii) Court orders and statutes may require amendment of a file. 
While they do not require a Privacy Act request for execution, such may 
be brought to the attention of DSS by these procedures.
    (c) Assistance. Individuals seeking to request amendment of records 
pertaining to themselves that are maintained by DSS will be assisted as 
necessary by DSS officials. Where a request is incomplete, it will not 
be denied, but the requester will be contacted for the additional 
information necessary to his request.
    (d) This section does not permit the alteration of evidence 
presented to courts, boards and other official proceedings.



Sec. 321.8  DSS review of request for amendment.

    (a) General. Upon receipt from any individual of a request to amend 
a record pertaining to himself and maintained by the Defense Security 
Service, Office of FOI and Privacy will handle the request as follows:
    (1) A written acknowledgment of the receipt of a request for 
amendment of a record will be provided to the individual within 10 
working days, unless final action regarding approval or denial can be 
accomplished within that time. In that case, the notification of 
approval or denial will constitute adequate acknowledgment.
    (2) Where there is a determination to grant all or a portion of a 
request to amend a record, the record shall be promptly amended and the 
requesting individual notified. Individuals, agencies or components 
shown by accounting records to have received copies of the record, or to 
whom disclosure has been made, will be notified, if necessary, of the 
amendment by the responsible official. Where a DoD recipient of an 
investigative record cannot be located, the notification, if necessary, 
will be sent to the personnel security element of the parent Component.
    (3) Where there is a determination to deny all or a portion of a 
request to amend a record, the office will promptly:
    (i) Advise the requesting individual of the specifics of the refusal 
and the reasons;
    (ii) Inform the individual that he may request a review of the 
denial(s) from `Director, Defense Security Service, 1340 Braddock Place, 
Alexandria, VA 22314-1651.' The request should be brief, in writing, and 
enclose a copy of the denial correspondence.
    (b) DSS determination to approve or deny. Determination to approve 
or deny and request to amend a record or portion thereof may necessitate 
additional investigation or inquiry be made to verify assertions of 
individuals requesting amendment. Coordination will be made with the 
Director for Investigations and the Director of the Personnel 
Investigations Center in such instances.



Sec. 321.9  Appeal of initial amendment decision.

    (a) General. Upon receipt from any individual of an appeal to review 
a DSS refusal to amend a record, the Defense Security Service, Office of 
FOI and Privacy will assure that such appeal is handled in compliance 
with the Privacy Act of 1974 and DoD Directive 5400.11 and accomplish 
the following:
    (1) Review the record, request for amendment, DSS action on the 
request and the denial, and direct such additional inquiry or 
investigation as is deemed necessary to make a fair and equitable 
determination.
    (2) Recommend to the Director whether to approve or deny the appeal.
    (3) If the determination is made to amend a record, advise the 
individual and previous recipients (or an appropriate office) where an 
accounting of disclosures has been made.
    (4) Where the decision has been made to deny the individual's appeal 
to amend a record, notify the individual:
    (i) Of the denial and the reason;
    (ii) Of his right to file a concise statement of reasons for 
disagreeing

[[Page 928]]

with the decision not to amend the record;
    (iii) That such statement may be sent to the Defense Security 
Service, Office of FOI and Privacy, (GCF), 1340 Braddock Place, 
Alexandria, VA 22314-1651, and that it will be disclosed to users of the 
disputed record;
    (iv) That prior recipients of the disputed record will be provided a 
copy of the statement of disagreement, or if they cannot be reached 
(e.g., through deactivation) the personnel security element of their DoD 
component;
    (v) And, that he may file a suit in a Federal District Court to 
contest DSS's decision not to amend the disputed record.
    (b) Time limit for review of appeal. If the review of an appeal of a 
refusal to amend a record cannot be accomplished within 30 days, the 
Office of FOI and Privacy will notify the individual and advise him of 
the reasons, and inform him of when he may expect the review to be 
completed.



Sec. 321.10  Disclosure to other than subject.

    (a) General. No record contained in a system of records maintained 
by DSS shall be disclosed by any means to any person or agency outside 
the Department of Defense, except with the written consent or request of 
the individual subject of the record, except as provided in this 
section. Disclosures that may be made without the request or consent of 
the subject of the record are as follows:
    (1) To those officials and employees of the Department of Defense 
who have a need for the record in the performance of their duties, when 
the use is compatible with the stated purposes for which the record is 
maintained.
    (2) Required to be disclosed by the Freedom of Information Act.
    (3) For a routine use as described in DoD Directive 5400.11.
    (4) To the Census Bureau, National Archives, the U.S. Congress, the 
Comptroller General or General Accounting Office under the conditions 
specified in DoD Directive 5400.11.
    (5) At the written request of the head of an agency outside DoD for 
a law enforcement activity as authorized by DoD Directive 5400.11.
    (6) For statistical purposes, in response to a court order, or for 
compelling circumstances affecting the health or safety of an individual 
as described in DoD Directive 5400.11.
    (7) Legal guardians recognized by the Act.
    (b) Accounting of disclosures. Except for disclosures made to 
members of the DoD in connection with their routine duties, and 
disclosures required by the Freedom of Information Act, an accounting 
will be kept of all disclosures of records maintained in DSS systems.
    (1) Accounting entries will normally be kept on a DSS form, which 
will be maintained in the record file jacket, or in a document that is 
part of the record.
    (2) Accounting entries will record the date, nature and purpose of 
each disclosure, and the name and address of the person or agency to 
whom the disclosure is made.
    (3) An accounting of disclosures made to agencies outside the DoD of 
records in the Defense Clearance and Investigations Index (V5-02) will 
be kept as prescribed by the Director of Systems, DSS.
    (4) Accounting records will be maintained for at least 5 years after 
the last disclosure, or for the life of the record, whichever is longer.
    (5) Subjects of DSS records will be given access to associated 
accounting records upon request, except as exempted under Sec. 321.13.



Sec. 321.11  Fees.

    Individuals may request copies for retention of any documents to 
which they are granted access in DSS records pertaining to them. 
Requestors will not be charged for the first copy of any records 
provided; however, duplicate copies will require a charge to cover costs 
of reproduction. Such charges will be computed in accordance with DoD 
Directive 5400.11.



Sec. 321.12  Penalties.

    (a) An individual may bring a civil action against the DSS to 
correct or amend the record, or where there is a refusal to comply with 
an individual request or failure to maintain any

[[Page 929]]

record with accuracy, relevance, timeliness and completeness, so as to 
guarantee fairness, or failure to comply with any other provision of 5 
U.S.C. 552a. The court may order correction or amendment. It may assess 
against the United States reasonable attorney fees and other costs, or 
may enjoin the DSS from withholding the records and order the production 
to the complainant.
    (b) Where it is determined that the action was willful or 
intentional with respect to 5 U.S.C. 552a(g)(1) (C) or (D), the United 
States shall be liable for the actual damages sustained, but in no case 
less than the sum of $1,000 and the costs of the action with attorney 
fees.
    (c) Criminal penalties may be imposed against an officer or employee 
of the DSS who fully discloses material, which he knows is prohibited 
from disclosure, or who willfully maintains a system of records without 
the notice requirements; or against any person who knowingly and 
willfully requests or obtains any record concerning an individual from 
an agency under false pretenses. These offenses shall be misdemeanors 
with a fine not to exceed $5,000.



Sec. 321.13  Exemptions.

    (a) General. The Director of the Defense Security Service 
establishes the following exemptions of records systems (or portions 
thereof) from the provisions of these rules, and other indicated 
portions of Pub. L. 93-579, in this section. They may be exercised only 
by the Director, Defense Security Service and the Chief of the Office of 
FOI and Privacy. Exemptions will be exercised only when necessary for a 
specific, significant and legitimate reason connected with the purpose 
of a records system, and not simply because they are authorized by 
statute. Personal records releasable under the provisions of 5 U.S.C. 
552 will not be withheld from subject individuals based on these 
exemptions.

    (b) All systems of records maintained by DSS shall be exempt from 
the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to 
the extent that the system contains any information properly classified 
under Executive Order 12958 and which is required by the Executive Order 
to be withheld in the interest of national defense of foreign policy. 
This exemption, which may be applicable to parts of all systems of 
records, is necessary because certain record systems not otherwise 
specifically designated for exemptions herein may contain items of 
information that have been properly classified.

    (c) System identifier: V1-01.
    (1) System name: Privacy and Freedom of Information Request Records.
    (2) Exemptions: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.

    (ii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).

    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) Any portion of this system that falls under the provisions of 5 
U.S.C. 552a(k)(2), (k)(3), (k)(5) may be exempt from the following 
subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I); 
and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective

[[Page 930]]

date of the Act, under an implied promise);
    (ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it 
will provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise);
    (iii) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.

    (d) System identifier: V5-01.
    (1) System name: Investigative Files System
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.

    (ii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).

    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) Any portion of this system that falls under the provisions of 5 
U.S.C. 552a(k)(2), (k)(3), or (k)(5) may be exempt from the following 
subsections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and 
(I); and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), or (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective date of the Act, under an implied 
promise).
    (ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it 
will provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (iii) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency

[[Page 931]]

rules requiring verification of record, disclosure of the record to the 
subject, and record amendment procedures.

    (e) System identifier: V5-02.
    (1) System name: Defense Clearance and Investigations Index (DCII).
    (2) Exemption: Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Any portion of this system that falls under the provisions of 5 
U.S.C. 552a(k)(2) may be exempt from the following subsections of 5 
U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: (i) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective date of the Act, under an implied 
promise).
    (ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it 
will provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (iii) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.

    (f) System identifier: V5-03.
    (1) System name: Case Control Management System (CCMS).
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source. Any portion of this system that falls under the 
provisions of 5 U.S.C. 552a(k)(2) or (k)(5) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3); (d); (e)(1); (e)(4)(G), 
(H), and (I); and (f).
    (3) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons. (i) From subsection (c)(3) because it will enable DSS 
to conduct certain investigations and relay law enforcement information 
without compromise of the information, protection of investigative 
techniques and efforts employed, and identities of confidential sources 
who might not otherwise come forward and who furnished information under 
an express promise that the sources' identity would be held in 
confidence (or prior to the effective

[[Page 932]]

date of the Act, under an implied promise).
    (ii) From subsections (e)(1), (e)(4)(G), (H), and (I) because it 
will provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, which might alert a subject to the fact that an 
investigation of that individual is taking place, and the disclosure of 
which would weaken the on-going investigation, reveal investigatory 
techniques, and place confidential informants in jeopardy who furnished 
information under an express promise that the sources' identity would be 
held in confidence (or prior to the effective date of the Act, under an 
implied promise).
    (iii) From subsections (d) and (f) because requiring DSS to grant 
access to records and agency rules for access and amendment of records 
would unfairly impede the agency's investigation of allegations of 
unlawful activities. To require DSS to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.

    (g) System identifier: V5-04.
    (1) System name: Counterintelligence Issues Database (CII-DB).
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).

    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.

    (iii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).

    (iv) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (v) Any portion of this system that falls within the provisions of 5 
U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5) may be exempt from the 
following subsections (c)(3); (d)(1) through (d)(5); (e)(1); (e)(4)(G), 
(H), and (I); and (f).
    (3) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3) and (k)(5).
    (4) Reasons. (i) From subsection (c)(3) because giving the 
individual access to the disclosure accounting could alert the subject 
of an investigation to the existence and nature of the investigation and 
reveal investigative or prosecutive interest by other agencies, 
particularly in a joint-investigation situation. This would seriously 
impede or compromise the investigation and case preparation by 
prematurely revealing its existence and nature; compromise or interfere 
with witnesses or make witnesses reluctant to cooperate with the 
investigators; lead to suppression, alteration, fabrication, or 
destruction of evidence; and endanger the physical safety of 
confidential sources, witnesses, law enforcement personnel and their 
families.
    (ii) From subsection (d) because the application of these provisions 
could impede or compromise an investigation or prosecution if the 
subject of an investigation had access to the records or were able to 
use such rules to learn of the existence of an investigation before it 
would be completed. In addition, the mere notice of the fact of an 
investigation could inform the subject and others that their activities 
are under or may become the subject of an investigation and could enable 
the subjects to avoid detection or apprehension, to influence witnesses 
improperly, to destroy evidence, or to fabricate testimony.
    (iii) From subsection (e)(1) because during an investigation it is 
not always

[[Page 933]]

possible to detect the relevance or necessity of each piece of 
information in the early stages of an investigation. In some cases, it 
is only after the information is evaluated in light of other evidence 
that its relevance and necessity will be clear. In other cases, what may 
appear to be a relevant and necessary piece of information may become 
irrelevant in light of further investigation. In addition, during the 
course of an investigation, the investigator may obtain information that 
related primarily to matters under the investigative jurisdiction of 
another agency, and that information may not be reasonably segregated. 
In the interest of effective law enforcement, DSS investigators should 
retain this information, since it can aid in establishing patterns of 
criminal activity and can provide valuable leads for Federal and other 
law enforcement agencies.
    (iv) From subsections (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) 
because this system is exempt from subsection (d) of the Act, concerning 
access to records. These requirements are inapplicable to the extent 
that these records will be exempt from these subsections. However, DSS 
has published information concerning its notification and access 
procedures, and the records source categories because under certain 
circumstances, DSS could decide it is appropriate for an individual to 
have access to all or a portion of his/her records in this system of 
records.

    (h) System identifier: V5-05.
    (1) System name: Joint Personnel Adjudication System (JPAS).
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(5) from the following subsections of 5 
U.S.C. 552a(c)(3), (d), and (e)(1).
    (3) Authority: 5 U.S.C. 552a(k)(5).
    (4) Reasons: (i) From subsections (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential source to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (ii) From subsection (e)(1) because in the collection of information 
for investigatory purpose, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. It is only after the information is evaluated in 
light of other information that its relevance and necessity becomes 
clear. Such information permits more informed decision-making by the 
Department when making required suitability, eligibility, and 
qualification determinations.

[64 FR 49660, Sept. 14, 1999, as amended at 70 FR 38009, July 1, 2005]



Sec. 321.14  DSS implementation policies.

    (a) General. The implementation of the Privacy Act of 1974 within 
DSS is as prescribed by DoD Directive 5400.11. This section provides 
special rules and information that extend or amplify DoD policies with 
respect to matters of particular concern to the Defense Security 
Service.
    (b) Privacy Act rules application. Any request which cites neither 
Act, concerning personal record information in a system or records, by 
the individual to whom such information pertains, for access, amendment, 
correction, accounting of disclosures, etc., will be governed by the 
Privacy Act of 1974, DoD Directive 5400.11 and these rules exclusively. 
Requests for like information which cite only the Freedom of Information 
Act will be governed by the

[[Page 934]]

Freedom of Information Act, DoD Regulation 5400.7R \2\. Any denial or 
exemption of all or part of a record from notification, access, 
disclosure, amendment or other provision, will also be processed under 
these rules, unless court order or other competent authority directs 
otherwise.
---------------------------------------------------------------------------

    \2\ See footnote 1 to 321.1.
---------------------------------------------------------------------------

    (c) First amendment rights. No DSS official or element may maintain 
any information pertaining to the exercise by an individual of his 
rights under the First Amendment without the permission of that 
individual unless such collection is specifically authorized by statute 
or necessary to and within the scope of an authorized law enforcement 
activity.
    (d) Standards of accuracy and validation of records. (1) All 
individuals or elements within DSS which create or maintain records 
pertaining to individuals will insure that they are reasonably accurate, 
relevant, timely and complete to serve the purpose for which they are 
maintained and to assure fairness to the individual to whom they 
pertain. Information that is not pertinent to a stated purpose of a 
system of records will not be maintained within those records. Officials 
compiling investigatory records will make every reasonable effort to 
assure that only reports that are impartial, clear, accurate, complete, 
fair and relevant with respect to the authorized purpose of such records 
are included, and that reports not meeting these standards or serving 
such purposes are not included in such records.
    (2) Prior to dissemination to an individual or agency outside DoD of 
any record about an individual (except for a Freedom of Information Act 
action or access by a subject individual under these rules) the 
disclosing DSS official will by review, make a reasonable effort to 
assure that such record is accurate, complete, timely, fair and relevant 
to the purpose for which they are maintained.
    (e) The Defense Clearance and Investigations Index (DCII). It is the 
policy of DSS, as custodian, that each DoD component or element that has 
direct access to or contributes records to the DCII (V5-02), is 
individually responsible for compliance with the Privacy Act of 1974 and 
DoD Directive 5400.11 with respect to requests for notification, 
requests for access by subject individuals, granting of such access, 
request for amendment and corrections by subjects, making amendments or 
corrections, other disclosures, accounting for disclosures and the 
exercise of exemptions, insofar as they pertain to any record placed in 
the DCII by that component or element. Any component or element of the 
DoD that makes a disclosure of any record whatsoever to an individual or 
agency outside the DoD, from the DCII, is individually responsible to 
maintain an accounting of that disclosure as prescribed by the Privacy 
Act of 1974 and DoD Directive 5400.11 and to notify the element placing 
the record in the DCII of the disclosure. Use of and compliance with the 
procedures of the DCII Disclosure Accounting System will meet these 
requirements. Any component or element of DoD with access to the DCII 
that, in response to a request concerning an individual, discovers a 
record pertaining to that individual placed in the DCII by another 
component or element, may refer the requester to the DoD component that 
placed the record into the DCII without making an accounting of such 
referral, although it involves the divulging of the existence of that 
record. Generally, consultation with, and referral to, the component or 
element placing a record in the DCII should be effected by any component 
receiving a request pertaining to that record to insure appropriate 
exercise of amendment or exemption procedures.
    (f) Investigative operations. (1) DSS agents must be thoroughly 
familiar with and understand these rules and the authorities, purposes 
and routine uses of DSS investigative records, and be prepared to 
explain them and the effect of refusing information to all sources of 
investigative information, including subjects, during interview, in 
response to questions that go beyond the required printed and oral 
notices. Agents shall be guided by DSS Handbook for Personnel Security 
Investigations in this respect.
    (2) All sources may be advised that the subject of an investigative 
record may be given access to it, but that the

[[Page 935]]

identities of sources may be withheld under certain conditions. Such 
advisement will be made as prescribed in DSS Handbook for Personnel 
Security Investigations, and the interviewing agent may not urge a 
source to request a grant of confidentiality. Such pledges of confidence 
will be given sparingly and then only when required to obtain 
information relevant and necessary to the stated purpose of the 
investigative information being collected.
    (g) Non-system information on individuals. The following information 
is not considered part of personal records systems reportable under the 
Privacy Act of 1974 and may be maintained by DSS members for ready 
identification, contact, and property control purposes only. If at any 
time the information described in this paragraph is to be used for other 
than these purposes, that information must become part of a reported, 
authorized record system. No other information concerning individuals 
except that described in the records systems notice and this paragraph 
may be maintained within DSS.
    (1) Identification information at doorways, building directories, 
desks, lockers, name tags, etc.
    (2) Identification in telephone directories, locator cards and 
rosters.
    (3) Geographical or agency contact cards.
    (4) Property receipts and control logs for building passes, 
credentials, vehicles, weapons, etc.
    (5) Temporary personal working notes kept solely by and at the 
initiative of individual members of DSS to facilitate their duties.
    (h) Notification of prior recipients. Whenever a decision is made to 
amend a record, or a statement contesting a DSS decision not to amend a 
record is received from the subject individual, prior recipients of the 
record identified in disclosure accountings will be notified to the 
extent possible. In some cases, prior recipients cannot be located due 
to reorganization or deactivations. In these cases, the personnel 
security element of the receiving Defense Component will be sent the 
notification or statement for appropriate action.
    (i) Ownership of DSS Investigative Records. Personnel security 
investigative reports shall not be retained by DoD recipient 
organizations. Such reports are considered to be the property of the 
investigating organization and are on loan to the recipient organization 
for the purpose for which requested. All copies of such reports shall be 
destroyed within 120 days after the completion of the final personnel 
security determination and the completion of all personnel action 
necessary to implement the determination. Reports that are required for 
longer periods may be retained only with the specific written approval 
of the investigative organization.
    (j) Consultation and referral. DSS system of records may contain 
records originated by other components or agencies which may have 
claimed exemptions for them under the Privacy Act of 1974. When any 
action that may be exempted is initiated concerning such a record, 
consultation with the originating agency or component will be effected. 
Where appropriate such records will be referred to the originating 
component or agency for approval or disapproval of the action.



PART 322_NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICES PRIVACY 
ACT PROGRAM--Table of Contents




Sec.
322.1 Purpose and applicability.
322.2 Definitions.
322.3 Policy.
322.4 Responsibilities.
322.5 Procedures.
322.6 Establishing exemptions.
322.7 Exempt systems of records.

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 68 FR 28757, May 27, 2003, unless otherwise noted.



Sec. 322.1  Purpose and applicability.

    (a) This part implements the Privacy Act of 1974 (5 U.S.C. 552a), as 
amended and the Department of Defense Privacy Program (32 CFR part 310) 
within the National Security Agency/Central Security Service (NSA/CSS); 
establishes policy for the collection and disclosure

[[Page 936]]

of personal information about individuals; assigns responsibilities and 
establishes procedures for collecting personal information and 
responding to first party requests for access to records, amendments of 
those records, or an accounting of disclosures.
    (b) This part applies to all NSA/CSS elements, field activities and 
personnel and governs the release or denial of any information under the 
terms of the Privacy Act of 1974 (5 U.S.C. 552a), as amended.



Sec. 322.2  Definitions.

    Access. The review of a record or a copy of a record or parts 
thereof in a system of records by an individual.
    Confidential source. A person or organization who has furnished 
information to the federal government under an express promise that the 
person's or the organization's identity will be held in confidence or 
under an implied promise of such confidentiality if this implied promise 
was made before September 27, 1975.
    Disclosure. The transfer of any personal information from a system 
of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review) to any person, private entity, 
or government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.
    Employees of NSA/CSS. Individuals employed by, assigned or detailed 
to the NSA/CSS. This part also applies to NSA/CSS contractor personnel 
who administer NSA/CSS systems of records that are subject to the 
Privacy Act.
    FOIA Request. A written request for NSA/CSS records, made by any 
person, that either explicitly or implicitly invokes the Freedom of 
Information Act (FOIA) (5 U.S.C. 552), as amended. FOIA requests will be 
accepted by U.S. mail or its equivalent, facsimile, or the Internet, or 
employees of NSA/CSS may hand deliver them.
    Individual. A living person who is a citizen of the United States or 
an alien lawfully admitted for permanent residence. The parent of a 
minor or the legal guardian of any individual also may act on behalf of 
an individual. Corporations, partnerships sole proprietorships, 
professional groups, businesses, whether incorporated or unincorporated, 
and other commercial entities are not individuals.
    Maintain. Includes maintain, collect, use or disseminate.
    Medical Records. Documents relating to the physical care and 
treatment of an individual.
    Privacy Act Request. A written request containing a signature 
submitted by a U.S. citizen or alien admitted for permanent residence 
for access to or amendment of records on himself/herself which are 
contained in a PA system of records. PA requests will be accepted via 
mail or facsimile, or NSA/CSS employees may hand deliver them. Digital 
signatures will be accepted via the Internet by October 21, 2003. Until 
then, PA requests will not be accepted via the Internet. Requests 
received via the Internet will not be acknowledged. Regardless of 
whether the requester cites the FOIA, PA, or no law, the request for 
records will be processed under both this part and the FOIA. Requests 
for amendments will be processed pursuant to the PA.
    Personal information. The collection of two or more pieces of 
information that is about an individual: e.g. name and date of birth, 
Social Security Number.
    Personal notes. Notations created in paper or electronic form for 
the convenience and at the discretion of the originator, for the 
originator's eyes only, and over which NSA/CSS exercises no control. 
Personal notes are not agency records within the meaning of the Privacy 
Act (PA) or the Freedom of Information Act (FOIA). However, once the 
personal note, or information contained therein, is shared with another 
individual, it becomes an Agency record and is subject to the provisions 
of the FOIA and, if appropriate, the PA.
    Psychological Records. Documents relating to the psychological care 
and treatment of an individual.
    Record. Any item, collection, or grouping of information, whatever 
the storage media (paper, electronic, etc.) about an individual or his 
or her education, financial transactions, medical history, criminal or 
employment history, and that contains his or her

[[Page 937]]

name, or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a fingerprint, voice print, or a 
photograph. The record must be in existence and under the control of 
NSA/CSS at the time a request is made.
    Routine use. The disclosure of a record outside NSA/CSS or the DoD 
for a use that is compatible with the purpose for which the information 
was collected and maintained by NSA/CSS. The routine use must be 
included in the published system of records.
    System of Records. A group of records under the control of a federal 
agency from which personal information is retrieved by the individual's 
name or by some identifying number, symbol, or other identifying 
particular assigned to an individual



Sec. 322.3  Policy.

    (a) The National Security Agency/Central Security Service shall 
maintain in its records only such information about an individual that 
is relevant and necessary to accomplish a purpose of the Agency, and 
that is required or authorized to be maintained by statute or Executive 
Order. Information about an individual shall, to the greatest extent 
practicable, be collected directly from the individual if the 
information may result in adverse determinations about the individual's 
rights, benefits, and privileges under any Federal program. Records used 
by this Agency in making adverse determinations about an individual 
shall be maintained with such accuracy, relevance, timeliness and 
completeness as is reasonably necessary to assure fairness to the 
individual. The Agency shall protect the privacy of individuals 
identified in its records, and shall permit an individual to request 
access to personal information in records on himself/herself and to 
request correction or amendment of factual information contained in such 
records. These policies are consistent with the spirit and intent of the 
PA, and are subject to exemptions under the Act, as defined in Sec. 
322.7, and legal requirements to protect sensitive NSA information such 
as the intelligence sources and methods the Agency employs to fulfill 
its mission.
    (b) Pursuant to written requests submitted in accordance with the 
PA, the NSA/CSS shall make records available consistent with the Act and 
the need to protect government interests pursuant to subsections (d) and 
(k) of the Privacy Act. Oral requests for information shall not be 
accepted. Before the Agency responds to a request, the request must 
comply with the provisions of this part.
    (c) In order that members of the public have timely access to 
unclassified information regarding NSA activities, requests for 
information that would not be withheld if requested under the FOIA or 
the PA may be honored through appropriate means without requiring the 
requester to invoke the FOIA or the PA. Although a record may require 
minimal redaction before its release, this fact alone shall not require 
the Agency to direct the requester to submit a formal FOIA or PA request 
for the record.



Sec. 322.4  Responsibilities.

    (a) The Director's Chief of Staff (DC) is responsible for overseeing 
the administration of the PA. The Director of Policy (DC3), or the 
Deputy Director of Policy, if so designated, shall carry out this 
responsibility on behalf of the Chief of Staff and shall:
    (1) Provide policy guidance to NSA/CSS on PA issues.
    (2) Provide policy guidance to PA coordinators for processing PA 
requests from NSA/CSS employees who will be using the records within 
NSA/CSS spaces.
    (3) Provide training of NSA/CSS employees and contractors in the 
requirements of the PA. Specialized training is provided to special 
investigators and employees who deal with the news media or the public.
    (4) Receive, process, and respond to PA requests from individuals 
and employees who require the information for use outside of NSA/CSS 
spaces.
    (i) Conduct the appropriate search for and review of records.
    (ii) Provide the requester with copies of all releasable material.
    (iii) Notify the requester of any adverse determination, including 
his/her right to appeal an adverse determination to the NSA/CSS Appeal 
Authority.

[[Page 938]]

    (iv) Assure the timeliness of responses.
    (5) Receive, process and respond to PA amendment requests to 
include:
    (i) Obtain comments and supporting documentation from the 
organization originating the record.
    (ii) Conduct a review of all documentation relevant to the request.
    (iii) Advise the requester of the Agency's decision.
    (iv) Notify the requester of any adverse determination, including 
his/her right to appeal the adverse determination to the NSA/CSS Appeal 
Authority.
    (v) Direct the appropriate Agency organization to amend a record and 
advise other record holders to amend the record when a decision is made 
in favor of a requester.
    (vi) Assure the timeliness of responses.
    (6) Ensure that Agency employees (internal requesters) that have 
access to NSA/CSS spaces are given access to all or part of a PA record 
to which the employee was denied by the record holder when, after a 
review of the circumstances by the Director of Policy, it is determined 
that access should be granted. For those individuals who do not have 
access to NSA/CSS spaces see Sec. 322.6 of this part.
    (7) Conduct Agency reviews in accordance with OMB Circular A-130\1\ 
and 32 CFR part 310.
---------------------------------------------------------------------------

    \1\ Available from http://www.whitehouse.gov/omb/circulars/
index.html.
---------------------------------------------------------------------------

    (8) Deposit in the U.S. Treasury all fees collected as a result of 
charges levied for the duplication of records provided under the PA and 
maintain the necessary accounting records for such fees.
    (b) The NSA/CSS Privacy Act Appeal Authority is designated as the 
reviewing authority for requests for review of denials by the Director 
of Policy to provide access to a record and/or to amend a record. The PA 
Appeal Authority is the Deputy Director, NSA. In the absence of the 
Deputy Director, the Director's Chief of Staff serves as the Appeal 
Authority.
    (c) The General Counsel (GC) or his designee shall:
    (1) Advise on all legal matters concerning the PA.
    (2) Advise the Director of Policy and other NSA/CSS organizations, 
as appropriate, of legal decisions including rulings by the Justice 
Department and actions by the DoD Privacy Board involving the PA.
    (3) Review proposed responses to PA requests to ensure legal 
sufficiency, as appropriate.
    (4) Provide a legal review of proposed Privacy Act notices and 
amendments for submission to the Defense Privacy Office.
    (5) Assist, as required, in the preparation of PA reports for the 
Department of Defense and other authorities.
    (6) Review proposals to collect PA information for legal 
sufficiency, assist in the development of PA statements and warning 
statements when required and approve prior to use.
    (7) Represent the Agency in all judicial actions related to the PA 
by providing support to the Department of Justice and by keeping the DoD 
Office of General Counsel apprised of pending PA litigation. A 
litigation status sheet will be provided to the Defense Privacy Office.
    (8) Assist in the education of new and current employees, including 
contractors, to the requirements of the PA.
    (9) Review PA and PA Amendment appeals, prepare responses, and 
submit them to the NSA/CSS Appeal Authority for final decision.
    (10) Notify the Director of Policy of the outcome of all appeals.
    (d) The Associate Director for Human Resources Services or designee 
shall:
    (1) Establish the physical security requirements for the protection 
of personal information and ensure that such requirements are 
maintained.
    (2) Establish and ensure compliance with procedures governing the 
pledging of confidentiality to sources of information interviewed in 
connection with inquiries to determine suitability, eligibility or 
qualifications for Federal employment, Federal contracts, or access to 
classified information.
    (3) Retain copies of records processed pursuant to the PA. The 
retention schedule is six years from the date records were provided to 
the requester if deletions were made and two years if records were 
provided in their entirety.

[[Page 939]]

    (4) Ensure the prompt delivery of all PA requests to the Director of 
Policy.
    (5) Ensure the prompt delivery of all Privacy Act appeals of an 
adverse determination to the NSA/CSS PA Appeal Authority staff.
    (6) Ensure that forms used to collect PA information meet the 
requirements of the PA.
    (7) Compile, when required, estimates of cost incurred in the 
preparation or modification of forms requiring PA Statements.
    (8) Assist in the development of training courses to educate new and 
current Agency employees, including contractors, of the provisions of 
the PA.
    (9) Respond to PA requests for access to records, as appropriate.
    (10) Establish procedures for the protection of personal information 
and ensure compliance with the procedures.
    (e) The Inspector General (IG) shall: (1) Be alert to Privacy Act 
compliance and to managerial administrative, and operational problems 
associated with the implementation of this part and document any such 
problems and remedial actions, if any, in official reports to 
responsible Agency officials, when appropriate.
    (2) Respond, as appropriate, to PA requests.
    (3) Establish procedures for the protection of personal records 
under the control or in the possession of OIG and ensure compliance with 
the procedures.
    (f) Chiefs of Directorates, Associate Directorates, and Field 
Elements shall: (1) Ensure that no systems or subsets of Systems of 
Records other than those published in the Federal Register are 
maintained within their components or field elements.
    (2) Establish rules of conduct for persons who design, use or 
maintain Systems of Records within their components or field elements 
and ensure compliance with these rules.
    (3) Establish, in consultation with the Associate Director of Human 
Resources or designee, the physical security requirements for the 
protection of personal information and ensure that such requirements are 
maintained.
    (4) Ensure that no records are maintained within their components or 
field elements which describe how any individual exercises rights 
guaranteed by the First Amendment to the Constitution of the United 
States unless expressly authorized by statute, or by the individual 
about whom the record is maintained, or unless pertinent to, and within 
the scope of, an authorized law enforcement activity.
    (5) Ensure that records contained in the Systems of Records within 
their components or field elements are not disclosed to anyone other 
than in conformance with the Privacy Act, to include the routine uses 
for such records published in the Federal Register.
    (6) Maintain only such information about an individual as is 
relevant and necessary to accomplish a purpose of the Agency required to 
be accomplished by statute and Executive Order.
    (7) Maintain all records which are used by the Agency in making any 
determination about any individual with such accuracy, relevancy, 
timeliness, and completeness as is reasonably necessary to ensure 
fairness to the individual in any determination.
    (8) Establish procedures for protecting the confidentiality of 
personal records maintained or processed by computer systems and ensure 
compliance with the procedures.
    (9) Designate a primary and alternate PA coordinator to be 
responsible for PA matters and inform the Office of Policy of the 
designations. Subordinate PA coordinators may be appointed at office 
level.
    (10) Ensure that the Privacy Act coordinators acquire the necessary 
training in the theory and administration of the Privacy Act.
    (11) Ensure that the Privacy Act coordinators conduct, to the extent 
practicable, on-the-job PA training of supervisors and records handlers 
in their organizations.
    (12) Respond to PA requests to review records, as appropriate.
    (13) Establish procedures for the protection of personal records and 
ensure compliance with the procedures.
    (14) Establish procedures to ensure that requests for copies of PA 
records needed for external use, outside of NSA/CSS, shall be delivered 
to the Director of Policy immediately upon receipt once the request is 
identified as a

[[Page 940]]

Privacy Act request or appears to be intended as such a request.
    (15) Publish, as necessary, internal PA procedures which are 
consistent with the Privacy Act and this part.
    (16) Maintain an accounting of disclosures of records as described 
in Sec. 322.5 of this part.
    (17) Coordinate with the Office of the General Counsel any proposed 
new record systems or changes (either alterations or amendments) to 
existing systems. Notice of new record systems or alterations to 
existing systems must be published in the Federal Register at least 30 
days and Congress and the Office of Management and Budget must be given 
40 days to review the new/altered system before implementation.
    (18) Collect and forward to the Director of Policy information 
necessary to prepare reports, as requested.
    (19) Respond promptly to the Director of Policy and the PA Appeal 
Authority decisions concerning the granting access to records, amending 
records, or filing statements of disagreements.
    (20) Ensure that forms (paper or electronic) used to collect PA 
information meet the requirements of the PA.
    (21) Establish procedures to ensure that requests to conduct 
computer matching are forwarded to the Director of Policy.
    (g) Each field element shall designate a Privacy Act (PA) 
Coordinator to ensure compliance with this part and to receive and, 
where appropriate, process PA requests. Section 322.6 of this part 
describes the procedure for individuals to gain access to records and 
the responsibilities of the PA Coordinators. Consistent with the 
provisions of 32 CFR parts 285 and 286 and 32 CFR part 310 special 
procedures apply to the disclosure of certain medical records and 
psychological records. Field elements should consult the PA Coordinator 
of the Office of Occupational Health, Environment and Safety Services 
before disclosing such information. (See paragraph (d)(9) of this 
section.)
    (h) All NSA/CSS organizations and field elements responsible for 
electronic/paper forms or other methods used to collect personal 
information from individuals shall determine, with General Counsel's 
concurrence, which of those forms or methods require Privacy Act 
Statements and shall prepare the required statements. The Office of 
Policy requires all organizations or elements using such forms or 
methods shall ensure that respondents read, understand, and sign the 
statements before supplying the requested information. In addition, 
organizations must obtain the Director of Policy and the Office of 
General Counsel approval prior to the collection of personal information 
in electronic format.



Sec. 322.5  Procedures.

    (a) The Director of Policy, or the Deputy Director of Policy, if so 
designated, shall provide guidance to Privacy Act Coordinators for 
processing requests and releasing NSA/CSS information within the 
confines of the NSA/CSS. If any organization or element believes a 
request to review a PA record should be denied, it shall advise the 
requester of the procedures for requesting a review of the circumstances 
of the case by the Director of Policy.
    (b) Persons Authorized Access to NSA/CSS Facilities: (1) Requests 
from NSA/CSS affiliates with authorized access to NSA/CSS facilities to 
review and/or obtain a copy of PA records in a Systems of Records for 
use within NSA/CSS spaces or for the inspection of an accounting of 
disclosures of the record shall be in writing, using the Privacy Act 
Information Request form. Requests shall normally be submitted directly 
to the Privacy Act Coordinator in the office holding the record. In the 
case of requests for access to records maintained in the individual's 
own organization, the Privacy Act Coordinator for that organization 
shall direct the requester to the person or office holding the record. A 
Privacy Act Information Request form shall be submitted to the holder of 
each record desired. The Privacy Act Coordinator shall assist 
supervisors and record handlers in processing the request and shall 
maintain an accounting for reporting purposes. Individuals shall not be 
permitted to review or obtain an internal copy of IG, OGC and/or certain 
security records. The Personnel File, which was available upon request 
prior to the implementation of the Privacy Act, shall continue to be 
available for

[[Page 941]]

review without citing the Privacy Act or using the Privacy Act 
Information Request form.
    (2) Requests to obtain a copy of PA records for use outside of NSA/
CSS shall be forwarded to the Director of Policy, FOIA/PA Services 
(DC321) using the Privacy Act Information Request form or in any written 
format and must contain the individual's full name, signature, social 
security number, description of the records sought and a work or home 
phone number. Requests shall be processed pursuant to the Privacy Act 
and the FOIA.
    (c) Persons Not Authorized Access to NSA/CSS Facilities: (1) 
Requests from individuals who do not have authorized access to NSA/CSS 
facilities must be in writing, contain the individual's full name, 
current address, signature, social security number and a description of 
the records sought. The mailing address for the FOIA/PA office is: 
National Security Agency, ATTN: FOIA/PA Services (DC321), 9800 Savage 
Road, Suite 6248, Ft. George G. Meade, MD 20755-6248.
    (2) FOIA/PA Services may, at its discretion, require an unsworn 
declaration or a notarized statement of identity. In accordance with 28 
U.S.C. 1746, the language for an unsworn declaration is as follows:
    (i) If executed without the United States: `I declare (or certify, 
verify, or state) under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct. Executed on 
(date). (Signature)'.
    (ii) If executed within the United States, its territories, 
possessions, or commonwealths: `I declare (or certify, verify, or state) 
under penalty of perjury that the foregoing is true and correct. 
Executed on (date). (Signature)'.
    (d) General provisions regarding access and processing procedures: 
(1) The requester need not state a reason or otherwise justify the 
request. If the requester wishes to be accompanied by another person, 
the individual may be required to furnish a statement authorizing 
discussion or disclosure of the records in the presence of the other 
individual. If the requester wishes another person to obtain the records 
on his/her behalf, the requester shall provide a written statement 
appointing that person as his/her representative, authorizing that 
individual access to the records and affirming that such access shall 
not constitute an invasion of the requester's privacy or a violation of 
his/her rights under the Privacy Act. In addition, requests from parents 
or legal guardians for records on a minor may be accepted providing the 
individual is acting on behalf of the minor and evidence is provided to 
support his or her parentage (birth certificate showing requester as a 
parent) or guardianship (a court order establishing guardianship).
    (2) The Director of Policy and FOIA/PA Services (DC321) shall 
endeavor to respond to a direct request to the NSA/CSS within 20 working 
days of receipt. In the event the FOIA/PA Services cannot respond within 
20 working days due to unusual circumstances, the requester shall be 
advised of the reason for the delay and negotiate a completion date with 
the requester. Direct requests to NSA/CSS shall be processed in the 
order in which they are received. Requests referred to NSA/CSS by other 
government agencies shall be placed in the processing queue according to 
the date the requester's letter was received by the referring agency, if 
that date is known. If it is not known, it shall be placed in the 
appropriate processing queue according to the date of the requester's 
letter.
    (3) FOIA/PA requests for copies of records shall be worked in 
chronological order within six queues (``super easy,'' ``sensitive/
personal easy,'' ``non-personal easy,'' ``sensitive/personal 
voluminous,'' ``non-personal complex,'' and ``expedite''). The 
processing queues are defined as follows:
    (i) Super Easy Queue--The super easy queue is for requests for which 
no responsive records are located or for material that requires minimal 
specialized review.
    (ii) Sensitive/Personal Easy Queue--The sensitive/personal easy 
queue contains FOIA and PA records that contain sensitive personal 
information, typically relating to the requester or requester's 
relatives, and that do not require a lengthy review. DC321 staff members 
who specialize in handling sensitive personal information process these 
requests.

[[Page 942]]

    (iii) Non-Personal Easy Queue--The non-personal easy queue contains 
all other types of NSA records not relating to the requester, that often 
contain classified information that may require coordinated review among 
NSA components, and that do not require a lengthy review. DC321 staff 
members who specialize in complex classification issues process these 
requests.
    (iv) Sensitive/Personal Voluminous Queue--The sensitive/personal 
voluminous queue contains FOIA and PA records that contain sensitive 
personal information, typically relating to the requester or requester's 
relatives, and that require a lengthy review because of the high volume 
of responsive records. These records may also contain classified 
information that may require coordinated review in several NSA 
components. DC321 staff members who specialize in handling sensitive 
personal information process these requests.
    (v) Non-Personal Complex Queue--The non-personal complex queue 
contains FOIA records not relating to the requester that require a 
lengthy review because of the high volume and/or complexity of 
responsive records. These records contain classified, often technical 
information that requires coordinated review among many specialized NSA 
components, as well as consultation with other government agencies. 
DC321 staff members who specialize in complex classification issues 
process these requests.
    (vi) Expedite Queue--Cases meeting the criteria for expeditious 
processing as defined in this section will be processed in turn within 
that queue by the appropriate processing team.
    (4) Requesters shall be informed immediately if no responsive 
records are located. Following a search for and retrieval of responsive 
material, the initial processing team shall determine which queue in 
which to place the material, based on the criteria above, and shall so 
advise the requester. If the material requires minimal specialized 
review (super easy), the initial processing team shall review, redact if 
required, and provide the non-exempt responsive material to the 
requester immediately. The appropriate specialized processing team on a 
first in, first out basis within its queue shall process all other 
material. These procedures are followed so that a requester will not be 
required to wait a long period of time to learn that the Agency has no 
records responsive to his request or to obtain records that require 
minimal review.
    (5) Requests for expeditious processing must include justification 
and a statement certifying that the information is true and correct to 
the best of the requester's knowledge. Expedited processing shall be 
granted if the requester demonstrates a compelling need for the 
information. Compelling need is defined as the failure to obtain the 
records on an expedited basis could reasonably be expected to pose an 
imminent threat to the life or physical safety of an individual or there 
would be an imminent loss of substantial due process rights.
    (6) A request for expedited handling shall be responded to within 10 
calendar days of receipt. The requester shall be notified whether his/
her request meets the criteria for expedited processing within that time 
frame. If a request for expedited processing has been granted, a 
substantive response shall be provided within 20 working days of the 
date of the expedited decision. If a substantive response cannot be 
provided within 20 working days, a response shall be provided as soon as 
practicable and the chief of FOIA/PA Services shall attempt to negotiate 
an acceptable completion date with the requester, taking into account 
the number of cases preceding it in the expedite queue and the volume or 
complexity of the responsive material.
    (7) Upon receipt of a request, FOIA/PA Services (DC321) shall review 
the request and direct the appropriate PA coordinator to search for 
responsive records. If the search locates the requested records, the PA 
coordinator shall furnish copies of the responsive documents to the 
FOIA/PA office that in turn shall make a determination as to the 
releasability of the records. All releasable records, or portions 
thereof, shall be provided to the requester. However, if information is 
exempt pursuant to the FOIA and PA, the requester shall be advised of 
the statutory basis for the denial of the information and the procedure 
for filing an

[[Page 943]]

appeal. In the instance where no responsive records are located, the 
requester shall be advised of the negative results and his/her right to 
appeal what could be considered an adverse determination. NSA does not 
have the authority to release another agency's information; therefore, 
information originated by another government agency shall be referred to 
the originating agency for its direct response to the requester or for 
review and return to NSA for response to the requester. The requester 
shall be advised that a referral has been made, except when notification 
would reveal exempt information.
    (8) The requester shall not be charged a fee for the making of a 
comprehensible copy to satisfy the request for a copy of the documents. 
The requester may be charged for duplicate copies of the documents. 
However, if the direct cost of the duplicate copy is less than $25.00, 
the fee shall be waived. Duplicating fees shall be assessed according to 
the following schedule: Office Copy $.15 per page, Microfiche $.25 per 
page, and Printed Material $.02 per page. All payments shall be made by 
certified check or money order made payable to the Treasurer of the 
United States.
    (9) A medical/psychological record shall normally be disclosed to 
the individual to whom it pertains. However, and consistent with 5 
U.S.C. 552a(f)(3) of the Privacy Act, if in the judgment of an 
authorized Agency physician, the release of such information could have 
an adverse effect on the individual, the individual shall be advised 
that it is in his best interest to receive the records through a 
physician of the requester's choice or, in the case of psychological 
records, through a licensed Psychiatrist or licensed Clinical 
Psychologist of the requester's choice. NSA/CSS may require 
certification that the individual is licensed to practice the 
appropriate specialty. Although the requester shall pay any fees charged 
by the physician or psychologist, NSA/CSS encourages individuals to take 
advantage of receiving their records through this means. If, however, 
the individual wishes to waive receiving the records through this means, 
the records shall be sent directly to the individual.
    (10) Recipients of requests from NSA/CSS employees and affiliates 
for access to records within the confines of the NSA/CSS campus shall 
acknowledge the request within 10 working days of receipt, and access 
should be provided within 20 working days. If, for good cause, access 
cannot be provided within that time, the requester shall be advised in 
writing as to the reason and shall be given a date by which it is 
expected that access can be provided. If an office denies a request for 
access to a record, or any portion thereof, it shall notify the 
requester of its refusal and the reasons for it and shall advise the 
individual of the procedures for requesting a review of the 
circumstances by the Director of Policy. If the Director of Policy 
denies a request for access to a record or any portion thereof, the 
requester shall be notified of the refusal and the reasons the 
information was denied. The Director of Policy shall also advise the 
requester of the procedure for appealing to the NSA/CSS Privacy Act 
Appeal Authority. (See paragraph (e) of this section).
    (11) Although classified portions of NSA/CSS records are exempt from 
disclosure pursuant to exemption (k)(1) of the Privacy Act and exemption 
(b)(1) of the FOIA, NSA, in its sole discretion, may choose to provide 
an NSA affiliate access to the classified portions of records about the 
affiliate if the affiliate possesses the requisite security clearance, 
special access approvals, and appropriate need-to-know for the 
classified information at issue. Classified records may only be accessed 
by fully cleared personnel in NSA/CSS spaces. Disclosure of classified 
records under this provision shall not operate as a waiver of PA 
exemption (k)(1), FOIA exemption (b)(1), or of any other exemption or 
privilege that would otherwise authorize the Agency to withhold the 
classified records from disclosure. NSA's determination regarding an 
affiliate's need-to-know is not subject to appeal under this or any 
other authority. All copies of classified records made available to an 
NSA affiliate under the procedures of this Part shall carry the 
following statement: ``This classified material is provided to you under 
the provisions of the Privacy Act of 1974. Furnishing you this material

[[Page 944]]

does not relieve you of your obligations under the laws of the United 
States (See, e.g., section 798 of Title 18, U.S. Code) to protect 
classified information. You may retain this material under proper 
protection as specified in the NSA/CSS Classification Manual; you may 
not remove it from NSA/CSS facilities.''
    (12) The procedures described in this part do not entitle an 
individual to have access to any information compiled in reasonable 
anticipation of a civil action or proceeding, nor do they require that a 
record be created.
    (13) Requesting or obtaining access to records under false pretenses 
is a violation of the Privacy Act and is subject to criminal penalties.
    (e) Appeal of Denial of an Adverse Determination:(1) Any individual 
advised of an adverse determination shall be notified of the right to 
appeal the initial decision within 60 calendar days of the date of the 
response letter and that the appeal must be addressed to the NSA/CSS 
FOIA/PA Appeal Authority, National Security Agency, 9800 Savage Road, 
Suite 6248, Fort George G. Meade, MD 20755-6248. The following actions 
are considered adverse determinations:
    (i) Denial of records or portions of records.
    (ii) Inability of NSA/CSS to locate responsive records.
    (iii) Denial of a request for expeditious treatment.
    (iv) Non-agreement regarding completion date of request.
    (v) The appeal shall reference the initial denial of access and 
shall contain, in sufficient detail and particularity, the grounds upon 
which the requester believes the appeal should be granted.
    (2) The GC or his/her designee shall process appeals and make a 
recommendation to the Appeal Authority:
    (i) Upon receipt of an appeal regarding the denial of information or 
the inability of the Agency to locate records on an individual, the GC 
or his/her designee shall provide a legal review of the denial and/or 
the adequacy of the search for responsive material, and make other 
recommendations as appropriate.
    (ii) If the Appeal Authority determines that additional information 
may be released, the information shall be made available to the 
requester within 20 working days from receipt of the appeal. The 
conditions for responding to an appeal for which expedited treatment is 
sought by the requester are the same as those for expedited treatment on 
the initial processing of a request.
    (iii) If the Appeal Authority determines that the denial was proper, 
the requester must be advised 20 days after receipt of the appeal that 
the appeal is denied. The requester likewise shall be advised of the 
basis for the denial and the provisions for judicial review of the 
Agency's appellate determination.
    (iv) If a new search for records is conducted and produces 
additional records, the additional material shall be forwarded to the 
Director of Policy, as the initial denial authority (IDA), for review. 
Following review, the Director of Policy shall return the material to 
the GC with its recommendation for release or withholding. The GC will 
provide a legal review of the material, and the Appeal Authority shall 
make the release determination. Upon denial or release of additional 
information, the Appeal Authority shall advise the requester that more 
material was located and that the IDA and the Appeal Authority each 
conducted an independent review of the documents. In the case of denial, 
the requester shall be advised of the basis of the denial and the right 
to seek judicial review of the Agency's action.
    (v) When a requester appeals the absence of a response to a request 
within the statutory time limits, the GC shall process the absence of a 
response as it would denial of access to records. The Appeal authority 
shall advise the requester of the right to seek judicial review.
    (vi) Appeals shall be processed using the same multi-track system as 
initial requests. If an appeal cannot be responded to within 20 days, 
the requirement to obtain an extension from the requester is the same as 
with initial requests. The time to respond to an appeal, however, may be 
extended by the number of working days (not to exceed 10) that were not 
used as additional time for responding to the initial request. That is, 
if the initial request is processed within 20 days so that the

[[Page 945]]

extra 10 days of processing which an agency can negotiate with the 
requester are not used, the response to the appeal may be delayed for 
that 10 days (or any unused portion of the 10 days).
    (f) Amendment of Records:
    (1) Minor factual errors may be corrected without resort to the 
Privacy Act or the provisions of this part, provided the requester and 
record holder agree to that procedure. Whenever possible, a copy of the 
corrected record should be provided to the requester.
    (2) Requests for substantive changes to include deletions, removal 
of records, and amendment of significant factual information, because 
the information is incorrect or incomplete, shall be processed under the 
Privacy Act and the provisions of this part. The PA amendment process is 
limited to correcting records that are not accurate (factually correct), 
relevant, timely or complete.
    (3) The amendment process is not intended to replace other existing 
NSA/CSS Agency procedures such as those for registering grievances or 
appealing performance appraisal ratings. Also, since the amendment 
process is limited to correcting factual information, it may not be used 
to challenge official judgments, such as performance ratings, promotion 
potential, and performance appraisals as well as subjective judgments 
made by supervisors, which reflect his/her observations and evaluations.
    (4) Requests for amendments must be in writing, include the 
individual's name, signature, a copy of the record under dispute or 
sufficient identifying particulars to permit timely retrieval of the 
affected record, a description of the information under dispute and 
evidence to support the amendment request. The mailing address for the 
FOIA/PA office is National Security Agency, ATTN: FOIA/PA Services 
(DC321), 9800 Savage Road, Suite 6248, Fort George G. Meade, MD 20755-
6248. Individuals who have access to NSA/CSS spaces may send their 
request through the internal mail system to DC321.
    (5) FOIA/PA Services (DC321) shall acknowledge the amendment request 
within 10 working days of receipt and respond within 30 working days. 
The organization/individual who originated the information under dispute 
shall be given 10 working days to comment. On receipt of a response, 
FOIA/PA Services (DC321) shall review all documentation and determine if 
the amendment request shall be granted. If FOIA/PA Services (DC321) 
agrees with the request, it shall notify the requester and the office 
holding the record. The latter shall promptly amend the record and 
notify all holders and recipients of the records of the correction. If 
the amendment request is denied, the requester shall be advised of the 
reasons for the denial and the procedures for filing an appeal.
    (g) Appeal of Refusals To Amend Records--
    (1) If the Director of Policy, as the Initial Denial Authority, 
refuses to amend any part of a record it shall notify the requester of 
its refusal, the reasons for the denial and the procedures for 
requesting a review of the decision by the NSA/CSS Appeal Authority. The 
Appeal Authority shall render a final decision within 30 working days, 
except when circumstances necessitate an extension. If an extension is 
necessary, the requester shall be informed, in writing, of the reasons 
for the delay and of the approximate date on which the review is 
expected to be completed. If the NSA/CSS Appeal Authority determines 
that the record should be amended, the requester, FOIA/PA Services, and 
the office holding the record will be advised. The latter shall promptly 
amend the record and notify all recipients.
    (2) If the NSA/CSS Privacy Act Appeal Authority denies any part of 
the request for amendment, the requester shall be advised of the reasons 
for denial, his or her right to file a concise statement of reasons for 
disputing the information contained in the record, and his or her right 
to seek judicial review of the Agency's refusal to amend the record. 
Statements of disagreement and related notifications and summaries of 
the Agency's reasons for refusing to amend the record shall be processed 
in the manner prescribed by 32 CFR part 310.
    (h) Disclosures and Accounting of Disclosures.

[[Page 946]]

    (1) No record contained in a System of Records maintained within the 
Department of Defense shall be disclosed by any means of communication 
to any person, or to any agency outside the Department of Defense, 
except pursuant to a written request by, or with the prior written 
consent of, the individual to whom the record pertains, unless 
disclosure of the record will be:
    (i) To those officials and employees of the Agency who have a need 
for the record in the performance of their duties and the use is 
compatible with the purpose for which the record is maintained.
    (ii) Required to be disclosed under the Freedom of Information Act, 
as amended.
    (iii) For a routine use as described in NSA/CSS systems of records 
notices. The DoD ``Blanket Routine Uses'' may also apply to NSA/CSS 
systems of records. (See Appendix C to 32 CFR part 310).
    (iv) To the Bureau of the Census for the purpose of planning or 
carrying out a census or survey or related activity authorized by law.
    (v) To a recipient who has provided the Department of Defense or the 
Agency with advance, adequate written assurance that:
    (A) The record will be used solely as a statistical research or 
reporting record;
    (B) The record is to be transferred in a form that is not 
individually identifiable (i.e., the identity of the individual cannot 
be determined by combining various statistical records); and
    (C) The record will not be used to make any decisions about the 
rights, benefits, or entitlements of an individual.
    (vi) To the National Archives and Records Administration as a record 
which has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Archivist of the United States or the designee of the Archivist to 
determine whether the record has such value. A record transferred to a 
Federal records center for safekeeping or storage does not fall within 
this category since Federal records center personnel act on behalf of 
the Department of Defense in this instance and the records remain under 
the control of the NSA/CSS. No disclosure accounting record of the 
transfer of records to Federal records center need be maintained.
    (vii) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the NSA/CSS specifying the particular portion and the 
law enforcement activity for which the record is sought. Blanket 
requests for all records pertaining to an individual will not be 
accepted. A record may also be disclosed to a law enforcement agency at 
the initiative of the NSA/CSS when criminal conduct is suspected, 
provided that such disclosure has been established in advance as a 
``routine use.''
    (viii) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of the individual 
to whom the record pertains.
    (ix) To Congress, or, to the extent of matter within its 
jurisdiction, any committee or subcommittee thereof, or any joint 
committee of Congress or subcommittee of any such joint committee. This 
does not authorize the disclosure of any record subject to this part to 
members of Congress acting in their individual capacities or on behalf 
of their constituents, unless the individual consents.
    (x) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office.
    (xi) Pursuant to an order of a court of competent jurisdiction.
    (A) When a record is disclosed under compulsory legal process and 
when the issuance of that order or subpoena is made public by the court 
that issued it, efforts shall be made to notify the individual to whom 
the record pertains. This may be accomplished by notifying the 
individual by mail at his most recent address as contained in the 
Component's records.

[[Page 947]]

    (B) Upon being served with an order to disclose a record, the 
General Counsel shall endeavor to determine whether the issuance of the 
order is a matter of public record and, if it is not, seek to be advised 
when it becomes public. An accounting of the disclosure shall be made at 
the time the NSA/CSS complies with the order or subpoena.
    (xii) To a consumer reporting agency in accordance with section 
3711(f) of Title 31.
    (2) Except for disclosures made in accordance with paragraphs 
(h)(1)(i) and (ii) of this section, an accurate accounting of 
disclosures shall be kept by the record holder in consultation with the 
Privacy Act Coordinator.
    (i) The accounting shall include the date, nature, and purpose of 
each disclosure of a record to any person or to another agency; and the 
name and address of the person or agency to whom the disclosure is made. 
There need not be a notation on a single document of every disclosure of 
a particular record, provided the record holder can construct from its 
System the required accounting information:
    (A) When required by the individual;
    (B) When necessary to inform previous recipients of any amended 
records, or
    (C) When providing a cross reference to the justification or basis 
upon which the disclosure was made (including any written documentation 
as required in the case of the release of records for statistical or law 
enforcement purposes).
    (ii) The accounting shall be retained for at least five years after 
the last disclosure, or for the life of the record, whichever is longer. 
No record of the disclosure of this accounting need be maintained.
    (iii) Except for disclosures made under paragraph (h)(1)(vii) of 
this section, the accounting of disclosures shall be made available to 
the individual to whom the record pertains. The individual shall submit 
a Privacy Act Information Request form to the Privacy Act Coordinator in 
the office keeping the accounting of disclosures.
    (3) Disclosures made under circumstances not delineated in 
paragraphs (h)(1)(i) through (xii) of this section shall only be made 
after written permission of the individual involved has been obtained. 
Written permission shall be recorded on or appended to the document 
transmitting the personal information to the other agency, in which case 
no separate accounting of the disclosure need be made. Written 
permission is required in each separate case; i.e., once obtained, 
written permission for one case does not constitute blanket permission 
for other disclosures.
    (4) An individual's name and address may not be sold or rented 
unless such action is specifically authorized by law. This provision 
shall not be construed to require withholding of names and addresses 
otherwise permitted to be made public. Lists or compilations of names 
and home addresses, or single home addresses will not be disclosed, 
without the consent of the individual involved, to the public, 
including, but not limited to individual Congressmen, creditors, and 
commercial and financial institutions. Requests for home addresses may 
be referred to the last known address of the individual for reply at his 
discretion and the requester will be notified accordingly.



Sec. 322.6  Establishing exemptions.

    (a) Neither general nor specific exemptions are established 
automatically for any system of records. The head of the DoD Component 
maintaining the system of records must make a determination whether the 
system is one for which an exemption properly may be claimed and then 
propose and establish an exemption rule for the system. No system of 
records within the Department of Defense shall be considered exempted 
until the head of the Component has approved the exemption and an 
exemption rule has been published as a final rule in the Federal 
Register.
    (b) No system of records within NSA/CSS shall be considered exempt 
under subsection (j) or (k) of the Privacy Act until the exemption rule 
for the system of records has been published as a final rule in the 
Federal Register.
    (c) An individual is not entitled to have access to any information 
compiled in reasonable anticipation of a civil action or proceeding (5 
U.S.C. 552a(d)(5)).

[[Page 948]]

    (d) Proposals to exempt a system of records will be forwarded to the 
Defense Privacy Office, consistent with the requirements of 32 CFR part 
310, for review and action.
    (e) Consistent with the legislative purpose of the Privacy Act of 
1974, NSA/CSS will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NSA/CSS's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered, the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (f) Do not use an exemption to deny an individual access to any 
record to which he or she would have access under the Freedom of 
Information Act (5 U.S.C. 552).
    (g) Disclosure of records pertaining to personnel, or the functions 
and activities of the National Security Agency shall be prohibited to 
the extent authorized by Pub. L. No. 86-36 (1959) and 10 U.S.C. 424.
    (h) Exemptions NSA/CSS may claim.
    (1) General exemption. The general exemption established by 5 U.S.C. 
552a(j)(2) may be claimed to protect investigative records created and 
maintained by law enforcement activities of the NSA.
    (2) Specific exemptions. The specific exemptions permit certain 
categories of records to be exempt from certain specific provisions of 
the Privacy Act.
    (i) (k)(1) exemption. Information properly classified under 
Executive Order 12958 and that is required by Executive Order to be kept 
secret in the interest of national defense or foreign policy.
    (ii) (k)(2) exemption. Investigatory information compiled for law-
enforcement purposes by non-law enforcement activities and which is not 
within the scope of Sec. 310.51(a). If an individual is denied any 
right, privilege or benefit that he or she is otherwise entitled by 
federal law or for which he or she would otherwise be eligible as a 
result of the maintenance of the information, the individual will be 
provided access to the information except to the extent that disclosure 
would reveal the identity of a confidential source. This subsection when 
claimed allows limited protection of investigative reports maintained in 
a system of records used in personnel or administrative actions.
    (iii) (k)(3) exemption. Records maintained in connection with 
providing protective services to the President and other individuals 
identified under 18 U.S.C. 3506.
    (iv) (k)(4) exemption. Records maintained solely for statistical 
research or program evaluation purposes and which are not used to make 
decisions on the rights, benefits, or entitlement of an individual 
except for census records which may be disclosed under 13 U.S.C. 8.
    (v) (k)(5) exemption. Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information, but only to the extent such material 
would reveal the identity of a confidential source. This provision 
allows protection of confidential sources used in background 
investigations, employment inquiries, and similar inquiries that are for 
personnel screening to determine suitability, eligibility, or 
qualifications.
    (vi) (k)(6) exemption. Testing or examination material used solely 
to determine individual qualifications for appointment or promotion in 
the federal or military service, if the disclosure would compromise the 
objectivity or fairness of the test or examination process.
    (vii) (k)(7) exemption. Evaluation material used to determine 
potential for promotion in the Military Services, but only to the extent 
that the disclosure

[[Page 949]]

of such material would reveal the identity of a confidential source.



Sec. 322.7  Exempt systems of records.

    (a) All systems of records maintained by the NSA/CSS and its 
components shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains 
any information properly classified under Executive Order 12958 and that 
is required by Executive Order to be kept secret in the interest of 
national defense or foreign policy. This exemption is applicable to 
parts of all systems of records including those not otherwise 
specifically designated for exemptions herein, which contain isolated 
items of properly classified information.
    (b) GNSA 01.
    (1) System name: Access, Authority and Release of Information File.
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (3) Authority: 5 U.S.C. 552a(k)(5).

    (4) Reasons: (i) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential sources to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (ii) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (c) GNSA 02.
    (1) System name: Applicants.
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (3) Authority: 5 U.S.C. 552a(k)(5).
    (4) Reasons: (i) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential source to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (ii) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity

[[Page 950]]

of particular information in the early stages of the investigation. In 
some cases, it is only after the information is evaluated in light of 
other information that its relevance and necessity becomes clear. Such 
information permits more informed decision-making by the Department when 
making required suitability, eligibility, and qualification 
determinations.
    (d) GNSA 03.
    (1) System name: Correspondence, Cases, Complaints, Visitors, 
Requests.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. Note: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information

[[Page 951]]

and to protect privacy and physical safety of witnesses and informants. 
NSA will, nevertheless, continue to publish such a notice in broad 
generic terms, as is its current practice.
    (e) GNSA 04.
    (1) System name: Military Reserve Personnel Data Base.
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), and (e)(1).
    (3) Authority: 5 U.S.C. 552a(k)(5).
    (4) Reasons: (i) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would cause 
the identity of a confidential sources to be revealed. Disclosure of the 
source's identity not only will result in the Department breaching the 
promise of confidentiality made to the source but it will impair the 
Department's future ability to compile investigatory material for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, Federal contracts, or access to classified 
information. Unless sources can be assured that a promise of 
confidentiality will be honored, they will be less likely to provide 
information considered essential to the Department in making the 
required determinations.
    (ii) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages of 
the investigation. In some cases, it is only after the information is 
evaluated in light of other information that its relevance and necessity 
becomes clear. Such information permits more informed decision-making by 
the Department when making required suitability, eligibility, and 
qualification determinations.
    (f) GNSA 05.
    (1) System name: Equal Employment Opportunity Data.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. Note: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (iii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) and (k)(4) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(4).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access

[[Page 952]]

rights normally afforded under the Privacy Act would provide the subject 
with valuable information that would allow interference with or 
compromise of witnesses or render witnesses reluctant to cooperate; lead 
to suppression, alteration, or destruction of evidence; enable 
individuals to conceal their wrongdoing or mislead the course of the 
investigation; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach in order to 
satisfy any Government claim growing out of the investigation or 
proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (g) GNSA 06.
    (1) System name: Health, Medical and Safety Files.
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(5) and (k)(6).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.

[[Page 953]]

    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (h) GNSA 08.
    (1) System name: Payroll and Claims.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. Note: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (i) GNSA 09.
    (1) System name: Personnel File.

[[Page 954]]

    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(5) and (k)(6).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (j) GNSA 10.
    (1) System name: Personnel Security File.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. NOTE: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment,

[[Page 955]]

military service, federal contracts, or access to classified information 
may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent 
that such material would reveal the identity of a confidential source.
    (iii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iv) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(5), and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(5), and (k)(6).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (k) GNSA 12.
    (1) System name: Training.
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(5) and (k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(5), and (k)(6).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they

[[Page 956]]

are under investigation and provide them with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (l) GNSA 13.
    (1) System name: Archival Records.
    (2) Exemption: (i) Records maintained solely for statistical 
research or program evaluation purposes and which are not used to make 
decisions on the rights, benefits, or entitlement of an individual 
except for census records which may be disclosed under 13 U.S.C. 8, may 
be exempt pursuant to 5 U.S.C. 552a(k)(4).
    (ii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(4) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(4).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only

[[Page 957]]

after the information is evaluated in light of other evidence that its 
relevance and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (m) GNSA 14.
    (1) System name: Library Patron File Control System.
    (2) Exemption: (i) Records maintained solely for statistical 
research or program evaluation purposes and which are not used to make 
decisions on the rights, benefits, or entitlement of an individual 
except for census records which may be disclosed under 13 U.S.C. 8, may 
be exempt pursuant to 5 U.S.C. 552a(k)(4).
    (ii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(4) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(4).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (n) GNSA 15.
    (1) System name: Computer Users Control System.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit

[[Page 958]]

for which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. NOTE: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (o) GNSA 17.
    (1) System name: Employee Assistance Service (EAS) Case Record 
System.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. Note: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (iii) Investigatory material compiled solely for the purpose of 
determining

[[Page 959]]

suitability, eligibility, or qualifications for federal civilian 
employment, military service, federal contracts, or access to classified 
information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to 
the extent that such material would reveal the identity of a 
confidential source.
    (iv) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (p) GNSA 18.
    (1) System name: Operations Files.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. NOTE: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt from the 
provisions of 5 U.S.C.

[[Page 960]]

552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments and 
corrections to the information in the system.
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NSA will, nevertheless, 
continue to publish such a notice in broad generic terms, as is its 
current practice.
    (q) GNSA 20.
    (1) System name: NSA Police Operational Files.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes, other than material within the scope of subsection 
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
exempt to the extent that disclosure would reveal the identity of a 
confidential source. Note: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    (ii) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) All portions of this system of records which fall within the 
scope of 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I) and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(4), and (k)(5).

[[Page 961]]

    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would place the subject of an investigation on 
notice that they are under investigation and provide them with 
significant information concerning the nature of the investigation, thus 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (d) and (f) because providing access to 
records of a civil or administrative investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; enable individuals to conceal their wrongdoing 
or mislead the course of the investigation; and result in the secreting 
of or other disposition of assets that would make them difficult or 
impossible to reach in order to satisfy any Government claim growing out 
of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants.

[68 FR 28757, May 27, 2003, as amended at 69 FR 62408, Oct. 26, 2004]



PART 323_DEFENSE LOGISTICS AGENCY PRIVACY PROGRAM--Table of Contents




Sec.
323.1 Purpose and scope.
323.2 Policy.
323.3 Definitions.
323.4 Responsibilities.
323.5 Procedures.
323.6 Forms and reports.

Appendix A to Part 323--Instructions for Preparation of System Notices
Appendix B to Part 323--Criteria for New and Altered Record Systems
Appendix C to Part 323--Instructions for Preparation of Reports to New 
          or Altered Systems
Appendix D to Part 323--Word Processing Center (WPC) Safeguards
Appendix E to Part 323--OMB Guidelines for Matching Programs
Appendix F to Part 323--Litigation Status Sheet
Appendix G to Part 323--Privacy Act Enforcement Actions
Appendix H to Part 323--DLA Exemption Rules

    Authority: Privacy Act of 1974, Pub. L. 93-579, Stat. 1896 (5 U.S.C. 
552a).

    Source: DLAR 5400.21, 51 FR 33595, Sept. 22, 1986, unless otherwise 
noted. Redesignated at 56 FR 57803, Nov. 14, 1991.



Sec. 323.1  Purpose and scope.

    This part 323 implements the Privacy Act of 1974 (5 U.S.C. 552a) and 
DoD Directive and DoD Regulation 5400.11, Department of Defense Privacy 
Program (32 CFR part 286a). It applies to Headquarters, Defense 
Logistics Agency (HQ DLA) and all DLA field activities.



Sec. 323.2  Policy.

    It is the policy of DLA to safeguard personal information contained 
in any system of records maintained by DLA activities and to make that 
information available to the individual to whom it pertains to the 
maximum extent practicable. DLA policy specifically requires that DLA 
activities:
    (a) Collect, maintain, use, and disseminate personal information 
only when it is relevant and necessary to achieve a purpose required by 
statute or Executive Order.
    (b) Collect personal information directly from the individuals to 
whom it pertains to the greatest extent practical.

[[Page 962]]

    (c) Inform individuals who are asked to supply personal information 
for inclusion in any system of records:
    (1) The authority for the solicitation.
    (2) Whether furnishing the information is mandatory or voluntary.
    (3) The intended uses of the information.
    (4) The routine disclosures of the information that may be made 
outside DoD.
    (5) The effect on the individual of not providing all of any part of 
the requested information.
    (d) Ensure that all records used in making determinations about 
individuals are accurate, relevant, timely, and complete.
    (e) Make reasonable efforts to ensure that records containing 
personal information are accurate, relevant, timely, and complete for 
the purposes for which they are being maintained before making them 
available to any recipients outside DoD, other than a Federal agency, 
unless the disclosure is made under DLAR 5400.14, DLA Freedom of 
Information Act Program (32 CFR part 1285).
    (f) Keep no record that describes how individuals exercise their 
rights guaranteed by the First Amendment of the U.S. Constitution, 
unless expressly authorized by statute or by the individual to whom the 
records pertain or is pertinent to and within the scope of an authorized 
law enforcement activity.
    (g) Make reasonable efforts, when appropriate, to notify individuals 
whenever records pertaining to them are made available under compulsory 
legal process, if such process is a matter of public record.
    (h) Establish safeguards to ensure the security of personal 
information and to protect this information from threats or hazards that 
might result in substantial harm, embarrassment, inconvenience, or 
unfairness to the individual.
    (i) Establish rules of conduct for DoD personnel involved in the 
design, development, operation, or maintenance of any system of records 
and train them in these rules of conduct.
    (j) Assist individuals in determining what records pertaining to 
them are being collected, maintained, used, or disseminated.
    (k) Permit individual access to the information pertaining to them 
maintained in any system of records, and to correct or amend that 
information, unless an exemption for the system has been properly 
established for an important public purpose.
    (l) Provide, on request, an accounting of all disclosures of the 
information pertaining to them except when disclosures are made:
    (1) To DoD personnel in the course of their official duties.
    (2) Under 32 CFR part 1285 (DLAR 5400.14).
    (m) Advise individuals on their rights to appeal any refusal to 
grant access to or amend any record pertaining to them, and to file a 
statement of disagreement with the record in the event amendment is 
refused.

[DLAR 5400.21, 51 FR 33595, Sept. 22, 1986, unless otherwise noted. 
Redesignated at 56 FR 57803, Nov. 14, 1991, as amended at 66 FR 41781, 
Aug. 9, 2001]



Sec. 323.3  Definitions.

    (a) Access. The review of a record or a copy of a record or parts 
thereof in a system of records by any individual.
    (b) Agency. For the purpose of disclosing records subject to the 
Privacy Act among DoD Components, the Department of Defense is 
considered a single agency. For all other purposes including 
applications for access and amendment, denial of access or amendment, 
appeals from denials, and recordkeeping as regards release to non-DoD 
agencies, DLA is considered an agency within the meaning of the Privacy 
Act.
    (c) Confidential source. A person or organization who has furnished 
information to the Federal Government under an express promise that the 
person's or the organization's identity will be held in confidence or 
under an implied promise of such confidentiality if this implied promise 
was made before September 27, 1975.
    (d) Disclosure. The transfer of any personal information from a 
system of records by any means of communication to any person, private 
entity, or Government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.

[[Page 963]]

    (e) Individual. A living citizen of the United States or an alien 
lawfully admitted to the United States for permanent residence. The 
legal guardian of an individual has the same rights as the individual 
and may act on his or her behalf.
    (f) Individual access. Access to information pertaining to the 
individual by the individual or his or her designated agent or legal 
guardian.
    (g) Maintain. Includes maintain, collect, use, or disseminate.
    (h) Member of the public. Any individual or party acting in a 
private capacity to include Federal employees or military personnel.
    (i) Official use. Within the context of this part, this term is used 
when officials and employees of a DLA activity have a demonstrated need 
for the use of any record or the information contained therein in the 
performance of their official duties.
    (j) Personal information. Information about an individual that is 
intimate or private to the individual, as distinguished from information 
related solely to the individual's official functions or public life.
    (k) Privacy Act. The Privacy Act of 1974, as amended, 5 U.S.C. 552a.
    (l) Privacy Act request. A request from an individual for 
notification as to the existence of, access to, or amendment of records 
pertaining to that individual. These records must be maintained in a 
system of records. The request must indicate that it is being made under 
the Privacy Act to be considered a Privacy Act request.
    (m) Record. Any item, collection, or grouping of information about 
an individual that is maintained by DLA, including, but not limited to, 
the individual's education, financial transactions, medical history, and 
criminal or employment history, and that contains the individual's name, 
or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print or a 
photograph.
    (n) Risk assessment. An analysis considering information 
sensitivity, vulnerabilities, and the cost to a computer facility or 
word processing activity in safeguarding personal information processed 
or stored in the facility or activity.
    (o) Routine use. The disclosure of a record outside DoD for a use 
that is compatible with the purpose for which the information was 
collected and maintained by DoD. The routine use must be included in the 
published system notice for the system of records involved.
    (p) Statistical record. A record maintained only for statistical 
research or reporting purposes and not used in whole or in part in 
making determinations about specific individuals.
    (q) System of Records. A group of records under the control of a DLA 
activity from which information is retrieved by the individual's name or 
by some identifying number, symbol, or other identifying particular 
assigned to the individual. System notices for all Privacy Act systems 
of records must be published in the Federal Register.



Sec. 323.4  Responsibilities.

    (a) Headquarters Defense Logistics Agency.
    (1) The Staff Director, Corporate Communications, DLA Support 
Services (DSS-C) will:
    (i) Formulate policies, procedures, and standards necessary for 
uniform compliance with the Privacy Act by DLA activities.
    (ii) Serve as the DLA Privacy Act Officer and DLA representative on 
the Defense Privacy Board.
    (iii) Maintain a master registry of system notices published by DLA.
    (iv) Develop or compile the rules, notices, and reports required 
under this part.
    (v) Establish training programs for all individuals with public 
affairs duties, and all other personnel whose duties require access to 
or contact with systems of records affected by the Privacy Act. Initial 
training will be given to new employees and military members upon 
assignment. Refresher training will be provided annually or more 
frequently if conditions warrant.
    (2) The General Counsel, DLA (DLA-GC) will:
    (i) Serve as the appellate authority for denials of individual 
access and amendment of records.

[[Page 964]]

    (ii) Provide representation to the Defense Privacy Board Legal 
Committee.
    (iii) Advise the Defense Privacy Office on the status of DLA privacy 
litigation.
    (3) The DLA Chief Information Office (J-6) will formulate and 
implement protective standards for personal information maintained in 
automated data processing systems and facilities.
    (b) The Heads of DLA Primary Level Field Activities (PLFAs) will:
    (1) Ensure that the collection, maintenance, use, or dissemination 
of records of identifiable personal information is in a manner that 
assures that such action is for a necessary and lawful purpose; that the 
information is timely and accurate for its intended use; and that 
adequate safeguards are provided to prevent misuse of such information.
    (2) Designate a Privacy Act Officer to serve as the principal point 
of contact on privacy matters.
    (3) Ensure the internal operating procedures provide for effective 
compliance with the Privacy Act.
    (4) Establish training programs for all individuals with public 
affairs duties, and all other personnel whose duties require access to 
or contact with systems of records affected by the Privacy Act. Initial 
training will be given to new employees and military members upon 
assignment. Refresher training will be provided annually or more 
frequently if conditions warrant.

[DLAR 5400.21, 51 FR 33595, Sept. 22, 1986, unless otherwise noted. 
Redesignated at 56 FR 57803, Nov. 14, 1991, as amended at 66 FR 41781, 
Aug. 9, 2001]



Sec. 323.5  Procedures.

    (a) Individual access. (1) The access provisions of this part are 
intended for use by individuals whose records are maintained in systems 
of records. Release of personal information to individuals under this 
part is not considered public release of information.
    (2) Individuals will address requests for access to personal 
information about themselves in a system of records to the system 
manager or to the office designated in the system notice. Before being 
granted access to personal data, an individual may be required to 
provide reasonable verification of his or her identity. Identity 
verification procedures will be simple so as not to discourage 
individuals from seeking access to information about themselves; or be 
required of an individual seeking access to records which normally would 
be available under 32 CFR part 1285 (DLAR 5400.14).
    (i) Normally, when individuals seek personal access to records 
pertaining to themselves, identification will be made from documents 
that normally are readily available, such as employee and military 
identification cards, driver's license, other licenses, permits, or 
passes used for routine identification purposes.
    (ii) When access is requested by mail, identity verification may 
consist of the individual providing certain minimum identifying data, 
such as full name, date and place of birth, or such other personal 
information necessary to locate the record sought. If the information 
sought is sensitive, additional identifying data may be required. If 
notarization of requests is required, procedures will be established for 
an alternate method of verification for individuals who do not have 
access to notary services, such as military members overseas.
    (3) If an individual wishes to be accompanied by a third party when 
seeking access to his or her records or to have the records released 
directly to a third party, the individual may be required to furnish a 
signed access authorization granting the third party access. An 
individual will not be refused access to his or her record solely for 
failure to divulge his or her social security number (SSN) unless it is 
the only method by which retrieval can be made. The individual is not 
required to explain or justify his or her need for access to any record 
under this part.
    (4) Disclose medical records to the individual to whom they pertain, 
even if a minor, unless a judgment is made that access to such records 
could have an adverse effect on the mental or physical health of the 
individual. Normally, this determination will be made in consultation 
with a medical doctor. If it is determined that the release of the 
medical information may be harmful to the mental or physical health of

[[Page 965]]

the individual, send the record to a physician named by the individual 
and in the transmittal letter to the physician, explain why access by 
the individual without proper professional supervision could be harmful 
(unless it is obvious from the record). Do not require the physician to 
request the records for the individual. If the individual refuses or 
fails to designate a physician, the record will not be provided. Such 
refusal of access is not considered a denial for reporting purposes.
    (5) Requests by individuals for access to investigatory records 
pertaining to themselves and compiled for law enforcement purposes are 
processed under this part or 32 CFR part 1285 depending on which part 
gives them the greatest degree of access.
    (6) Certain documents under the physical control of DoD personnel 
and used to assist them in performing official functions, are not 
considered ``agency records'' within the meaning of this part. 
Uncirculated personal notes and records that are not disseminated or 
circulated to any person or organization (for example, personal 
telephone lists or memory aids) that are retained or discarded at the 
author's discretion and over which DLA exercises no direct control, are 
not considered agency records. However, if personnel are officially 
directed or encouraged, either in writing or orally, to maintain such 
records, they may become ``agency records,'' and may be subject to the 
Privacy Act of 1974 (5 U.S.C. 552a) and this part.
    (7) Acknowledge requests for access within 10 working days after 
receipt and provide access within 30 working days.
    (b) Denial of individual access. (1) Individuals may be formally 
denied access to a record pertaining to them only if the record was 
compiled in reasonable anticipation of civil action; is in a system of 
records that has been exempted from the access provisions of this part 
under one of the permitted exemptions; contains classified information 
that has been exempted from the access provision of this part under the 
blanket exemption for such material claimed for all DoD records systems; 
or is contained in a system of records for which access may be denied 
under some other Federal statute. Only deny the individual access to 
those portions of the records from which the denial of access serves 
some legitimate Governmental purpose.
    (2) An individual may be refused access if the record is not 
described well enough to enable it to be located with a reasonable 
amount of effort on the part of an employee familiar with the file; or 
access is sought by an individual who fails or refuses to comply with 
the established procedural requirements, including refusing to name a 
physician to receive medical records when required or to pay fees. 
Always explain to the individual the specific reason access has been 
refused and how he or she may obtain access.
    (3) Formal denials of access must be in writing and include as a 
minimum:
    (i) The name, title or position, and signature of the appropriate 
Head of the HQ DLA principal staff element or primary level field 
activity.
    (ii) The date of the denial.
    (iii) The specific reason for the denial, including specific 
citation to the appropriate sections of the Privacy Act of 1974 (5 
U.S.C. 552a) or other statutes, this part, or DLAR 5400.21 authorizing 
the denial.
    (iv) Notice to the individual of his or her right to appeal the 
denial within 60 calendar days of the date of the denial letter and to 
file any such appeal with the HQ DLA Privacy Act Officer, Defense 
Logistics Agency (DSS-CA), 8725 John J. Kingman Road, Suite 2533, Fort 
Belvoir, VA 22060-6221.
    (4) DLA will process all appeals within 30 days of receipt unless a 
fair an equitable review cannot be made within that period. The written 
appeal notification granting or denying access is the final DLA action 
on access.
    (5) The records in all systems of records maintained in accordance 
with the Office of Personnel Management (OPM) Government-wide system 
notices are technically only in the temporary custody of DLA. All 
requests for access to these records must be processed in accordance 
with the Federal Personnel Manual (5 CFR parts 293, 294, 297 and 735) as 
well as this part. DLA-GC is responsible for the appellate review of 
denial of access to such records.

[[Page 966]]

    (c) Amendment of records. (1) Individuals are encouraged to review 
the personal information being maintained about them by DLA and to avail 
themselves of the procedures established by this part to update their 
records. An individual may request the amendment of any record contained 
in a system of records pertaining to him or her unless the system of 
record has been exempted specifically from the amendment procedures of 
this part. Normally, amendments under this part are limited to 
correcting factual matters and not matters of official judgment, such as 
performance ratings promotion potential, and job performance appraisals.
    (2) The applicant must adequately support his or her claim and may 
be required to provide identification to ensure that they are indeed 
seeking to amend a record pertaining to themselves and not, 
inadvertently or intentionally, the record of others. Consider the 
following factors when evaluating the sufficiency of a request to amend:
    (i) The accuracy of the information itself.
    (ii) The relevancy, timeliness, completeness, and necessity of the 
recorded information for accomplishing an assigned mission or purpose.
    (3) Provide written acknowledgement of a request to amend within 10 
working days of its receipt by the appropriate systems manager. There is 
no need to acknowledge a request if the action is completed within 10 
working days and the individual is so informed. The letter of 
acknowledgement shall clearly identify the request and advise the 
individual when he or she may expect to be notified of the completed 
action. Only under the most exceptional circumstances will more than 30 
days be required to reach a decision on a request to amend.
    (4) If the decision is made to grant all or part of the request for 
amendment, amend the record accordingly and notify the requester. Notify 
all previous recipients of the information, as reflected in the 
disclosure accounting records, that an amendment has been made and the 
substance of the amendment. Recipients who are known to be no longer 
retaining the information need not be advised of the amendment. All DoD 
Components and Federal agencies known to be retaining the record or 
information, even if not reflected in disclosure records, will be 
notified of the amendment. Advise the requester of these notifications, 
and honor all requests by the requester to notify specific Federal 
agencies of the amendment action.
    (5) If the request for amendment is denied in whole or in part, 
promptly advise the individual in writing of the decision to include:
    (i) The specific reason and authority for not amending.
    (ii) Notification that he or she may seek further independent review 
of the decision by filing an appeal with the HQ DLA Privacy Act Officer, 
Defense Logistics Agency (DSS-CA), 8725 John J. Kingman Road, Suite 
2533, Fort Belvoir, VA 22060-6221, and including all supporting 
materials.
    (6) DLA will process all appeals within 30 days unless a fair review 
cannot be made within this time limit.
    (i) If the appeal is granted, DLA will promptly notify the requester 
and system manager of the decision. The system manager will amend the 
record(s) as directed and ensure that all prior known recipients of the 
records who are known to be retaining the record are notified of the 
decision and the specific nature of the amendment and that the requester 
is notified as to which DoD Components and Federal agencies have been 
told of the amendment.
    (ii) If the appeal is denied completely or in part, the individual 
is notified in writing by the reviewing official that:
    (A) The appeal has been denied and the specific reason and authority 
for the denial.
    (B) The individual may file a statement of disagreement with the 
appropriate authority and the procedures for filing this statement.
    (C) If filed properly, the statement of disagreement shall be 
included in the records, furnished to all future recipients of the 
records, and provided to all prior recipients of the disputed records 
who are known to hold the record.
    (D) The individual may seek a judicial review of the decision not to 
amend.

[[Page 967]]

    (7) The records in all systems of records controlled by the Office 
of Personnel Management (OPM) Government-wide system notices are 
technically only temporarily in the custody of DLA. All requests for 
amendment of these records must be processed in accordance with the 
Federal Personnel Manual (FPM). A DLA denial authority may deny a 
request. However, the appeal process for all such denials must include a 
review by the Assistant Director for Agency Compliance and Evaluation, 
Office of Personnel Management, 1900 E Street, NW., Washington, DC 
20415. When an appeal is received from a DLA denial of amendment of the 
OPM controlled record, process the appeal in accordance with the FPM and 
notify the OPM appeal authority listed above. The individual may appeal 
any DLA decision not to amend the OPM records directly to OPM. OPM is 
the final review authority for any appeal from a denial to amend the OPM 
records.
    (8) If the reviewing authority refuses to amend the record as 
requested, the individual may submit a concise statement of disagreement 
setting forth his or her reasons for disagreeing with the decision not 
to amend.
    (i) If an individual chooses to file a statement of disagreement, 
annotate the record to indicate that the statement has been filed. 
Furnish copies of the statement of disagreement to all DoD Components 
and Federal agencies that have been provided copies of the disputed 
information and who may be maintaining the information.
    (ii) When possible, incorporate the statement of disagreement into 
the record. If the statement cannot be made a part of the record, 
establish procedures to ensure that it is apparent from the records that 
a statement of disagreement has been filed and maintain the statement so 
that it can be obtained readily when the disputed information is used or 
disclosed. Automated record systems that are not programmed to accept 
statements of disagreement shall be annotated or coded so that they 
clearly indicate that a statement of disagreement is on file, and 
clearly identify the statement with the disputed information in the 
system. Provide a copy of the statement of disagreement whenever the 
disputed information is disclosed for any purpose.
    (9) A summary of reasons for refusing to amend may be included with 
any record for which a statement of disagreement is filed. Include in 
this summary only the reasons furnished to the individual for not 
amending the record. Do not include comments on the statement of 
disagreement. Normally, the summary and statement of disagreement are 
filed together. When disclosing information for which a summary has been 
filed, a copy of the summary may be included in the release, if desired.
    (d) Documentation. Establish a separate Privacy Case File to retain 
the documentation received and generated during the amendment or access 
process. There is no need to establish a Privacy Case File if the 
individual has not cited the Privacy Act or this part. Privacy Case 
Files shall not be furnished or disclosed to anyone for use in making 
any determination about the individual other than determinations made 
under this part. Only the items listed below may be included in the 
system of records challenged for amendment or for which access is 
sought. Do not retain copies of unamended records in the basis record 
system if the request for amendment is granted.
    (1) The following items relating to an amendment request may be 
included in the disputed record system:
    (i) Copies of the amended record.
    (ii) Copies of the individual's statement of disagreement.
    (iii) Copies of activity summaries.
    (iv) Supporting documentation submitted by the individual.
    (2) The following items relating to an access request may be 
included in the basic records system:
    (i) Copies of the request.
    (ii) Copies of the activity action granting total access. (Note: A 
separate Privacy Case File need not be created in such cases.)
    (iii) Copies of the activity action denying access.
    (iv) Copies of any appeals filed.
    (v) Copies of the reply to the appeal.
    (e) Fees. An individual may be charged only for the direct cost of 
copying and reproduction, computed

[[Page 968]]

using the appropriate portions of the fee schedule in DLAR 5400.14 (32 
CFR part 1285) under the provisions of this part. Normally, fees are 
waived automatically if the direct costs of a given request is less than 
$30. This fee waiver provision does not apply when a waiver has been 
granted to the individual before, and later requests appear to be an 
extension or duplication of that original request. DLA activities may, 
however, set aside this automatic fee waiver provision when on the basis 
of good evidence it determines that the waiver of fees is not in the 
public interest. Decisions to waive or reduce fees that exceed the 
automatic waiver threshold will be made on a case-by-case basis. Fees 
may not be charged when:
    (1) Copying is performed for the convenience of the Government or is 
the only means to make the record available to the individual.
    (2) The record may be obtained without charge under any other part, 
directive, or statute.
    (3) Providing documents to members of Congress for copying records 
furnished even when the records are requested under the Privacy Act on 
behalf of a constituent.
    (f) Disclosures of personal information. (1) For the purposes of 
disclosure and disclosure accounting, the Department of Defense is 
considered a single agency. Records pertaining to an individual may be 
disclosed without the consent of the individual to any DoD official who 
has need for the record in the performance of his or her assigned 
duties. Do not disclose personnel information from a system of records 
outside the Department of Defense unless the record has been requested 
by the individual to whom it pertains; the written consent of the 
individual to whom the record pertains has been obtained for release of 
the record to the requesting agency, activity, or individual; or the 
release is for one of the specific nonconsensual purposes set forth in 
this part or DLAR 5400.14, (32 CFR part 1285).
    (2) Except for releases made in accordance with DLAR 5400.14, (32 
CFR part 1285) before disclosing any personal information to any 
recipient outside DoD other than a Federal agency or the individual to 
whom it pertains;
    (i) Ensure that the records are accurate, timely, complete, and 
relevant for agency purposes.
    (ii) Contact the individual, if reasonably available, to verify the 
accuracy, timeliness, completeness, and relevancy of the information, if 
this cannot be determined from the record.
    (iii) If the information is not current and the individual is not 
reasonably available, advise the recipient that the information is 
believed accurate as of a specific date and any other known factors 
bearing on its accuracy and relevancy.
    (3) All records must be disclosed if their release is required by 
the Freedom of Information Act. DLAR 5400.14, (32 CFR part 1285) 
requires that records be made available to the public unless exempted 
from disclosure by one of the nine exemptions found in the Freedom of 
Information Act. The standard for exempting most personal records, such 
as personnel records, medical records, and similar records, is found in 
DLAR 5400.14 (32 CFR part 1285). Under the exemption, release of 
personal information can only be denied when its release would be a 
`clearly unwarranted invasion of personal privacy.'
    (i) All disclosures of personal information regarding Federal 
civilian employees will be made in accordance with the Federal Personnel 
Manual. Some examples of personal information regarding DoD civilian 
employees that normally may be released without a clearly unwarranted 
invasion of personal privacy include:
    (A) Name.
    (B) Present and past position titles.
    (C) Present and past grades.
    (D) Present and past salaries.
    (E) Present and past duty stations.
    (F) Office and duty telephone numbers.
    (ii) All release of personal information regarding military members 
shall be made in accordance with the standards established by DLAR 
5400.14, (32 CFR part 1285). While it is not possible to identify 
categorically information that must be released or withheld from 
military personnel records in every instance, the following items of 
personal

[[Page 969]]

information regarding military members normally may be disclosed without 
a clearly unwarranted invasion of their personal privacy:
    (A) Full name.
    (B) Rank.
    (C) Date of rank.
    (D) Gross salary.
    (E) Past duty assignments.
    (F) Present duty assignment.
    (G) Future assignments that are officially established.
    (H) Office or duty telephone numbers.
    (I) Source of commission.
    (J) Promotion sequence number.
    (K) Awards and decorations.
    (L) Attendance at professional military schools.
    (M) Duty status at any given time.
    (iii) All releases of personal information regarding civilian 
personnel not subject to the FPM shall be made in accordance with the 
standards established by DLAR 5400.14 (32 CFR part 1285). While it is 
not possible to identify categorically those items of personal 
information that must be released regarding civilian employees not 
subject to the FPM, such as nonappropriated fund employees, normally the 
following items may be released without a clearly unwarranted invasion 
of personal privacy:
    (A) Full name.
    (B) Grade or position.
    (C) Date of grade.
    (D) Gross salary.
    (E) Present and past assignments.
    (F) Future assignments, if officially established.
    (G) Office or duty telephone numbers.
    (4) A request for a home address or telephone number may be referred 
to the last known address of the individual for a direct reply by him or 
her to the requester. In such cases the requester will be notified of 
the referral. The release of home addresses and home telephone numbers 
normally is considered a clearly unwarranted invasion of personal 
privacy and is prohibited. However, these may be released without prior 
specific consent of the individual if:
    (i) The individual has indicated previously that he or she has no 
objection to their release.
    (ii) The source of the information to be released is a public 
document such as commercial telephone directory or other public listing.
    (iii) The release is required by Federal statute (for example, 
pursuant to Federally-funded state programs to locate parents who have 
defaulted on child support payments (42 U.S.C. section 653).)
    (iv) The releasing official releases the information under the 
provisions of DLAR 5400.14, (32 CFR part 1285).
    (5) Records may be disclosed outside DoD without consent of the 
individual to whom they pertain for an established routine use. Routine 
uses may be established, discontinued, or amended without the consent of 
the individuals involved. However, new or changed routine uses must be 
published in the Federal Register at least 30 days before actually 
disclosing any records under their provisions. In addition to the 
routine uses established by the individual system notices, common 
blanket routine uses for all DLA-maintained systems of records have been 
established. These blanket routine uses are published in DLAH 5400.1,\1\ 
DLA Systems of Records Handbook. Unless a system notice specifically 
excludes a system from a given blanket routine use, all blanket routine 
uses apply.
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the Defense Logistics Agency, ATTN: 
DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-
6221.
---------------------------------------------------------------------------

    (6) Records in DLA systems of records may be disclosed without the 
consent of the individuals to whom they pertain to the Bureau of the 
Census for purposes of planning or carrying out a census survey or 
related activities.
    (7) Records may be disclosed for statistical research and reporting 
without the consent of the individuals to whom they pertain. Before such 
disclosures, the recipient must provide advance written assurance that 
the records will be used as statistical research or reporting records; 
the records will only be transferred in a form that is not individually 
identifiable; and the records will not be used, in whole or in part, to 
make any determination about the rights, benefits, or entitlements of 
specific individuals. A disclosure accounting is not required.

[[Page 970]]

    (8) Records may be disclosed without the consent of the individual 
to whom they pertain to the National Archives and Records Administration 
(NARA) if they have historical or other value to warrant continued 
preservation; or for evaluation by NARA to determine if a record has 
such historical or other value. Records transferred to a Federal Record 
Center (FRC) for safekeeping and storage do not fall within this 
category. These remain under the control of the transferring activity, 
and the FRC personnel are considered agents of the activity which retain 
control over the records. No disclosure accounting is required for the 
transfer of records to FRCs.
    (9) Records may be disclosed without the consent of the individual 
to whom they pertain to another agency or an instrumentality of any 
governmental jurisdiction within or under the control of the United 
States for a civil or criminal law enforcement activity, provided the 
civil or criminal law enforcement activity is authorized by law; the 
head of the law enforcement acitivity or a designee has made a written 
request specifying the particular records desired and the law 
enforcement purpose (such as criminal investigations, enforcement of 
civil law, or a similar propose) for which the record is sought; and 
there is no Federal statute that prohibits the disclosure of the 
records. Normally, blanket requests for access to any and all records 
pertaining to an individual are not honored. When a record is released 
to a law enforcement activity, maintain a disclosure accounting. This 
disclosure accounting will not be made available to the individual to 
whom the record pertains if the law enforcement activity requests that 
the disclosure not be released.
    (10) Records may be disclosed without the consent of the individual 
to whom they pertain if disclosure is made under compelling 
circumstances affecting the health or safety of any individual. The 
affected individual need not be the subject of the record disclosed. 
When such a disclosure is made, notify the individual who is the subject 
of the record. Notification sent to the last known address of the 
individual as reflected in the records is sufficient.
    (11) Records may be disclosed without the consent of the individual 
to whom they pertain to either House of the Congress or to any 
committee, joint committee or subcommittee of Congress if the release 
pertains to a matter within the jurisdiction of the committee. Records 
may also be disclosed to the General Accounting Office (GAO) in the 
course of the activities of GAO.
    (12) Records may be disclosed without the consent of the person to 
whom they pertain under a court order signed by a judge of a court of 
competent jurisdiction. Releases may also be made under the compulsory 
legal process of Federal or state bodies having authority to issue such 
process.
    (i) When a record is disclosed under this provision, make reasonable 
efforts to notify the individual to whom the record pertains, if the 
legal process is a matter of public record.
    (ii) If the process is not a matter of public record at the time it 
is issued, seek to be advised when the process is made public and make 
reasonable efforts to notify the individual at that time.
    (iii) Notification sent to the last known address of the individual 
as reflected in the records is considered reasonable effort to notify. 
Make a disclosure accounting each time a record is disclosed under a 
court order or compulsory legal process.
    (13) Certain personal information may be disclosed to consumer 
reporting agencies as defined by the Federal Claims Collection Act. 
Information which may be disclosed to a consumer reporting agency 
includes:
    (i) Name, address, taxpayer identification number (SSN), and other 
information necessary to establish the identity of the individual.
    (ii) The amount, status, and history of the claim.
    (iii) The agency or program under which the claim arose.
    (g) Disclosure accounting. (1) Keep an accurate record of all 
disclosures made from any system of records except disclosures to DoD 
personnel for use in the performance of their official duties or under 
DLAR 5400.14 (32 CFR part

[[Page 971]]

1285). In all other cases a disclosure accounting is required even if 
the individual has consented to the disclosure of the information 
pertaining to him or her.
    (2) Use any system of disclosure accounting that will provide the 
necessary disclosure information. As a minimum, disclosure accounting 
will contain the date of the disclosure, a description of the 
information released, the purpose of the disclosure, the name and 
address of the person or agency to whom the disclosure was made. When 
numerous similar records are released (such as transmittal of payroll 
checks to a bank), identify the category of records disclosed and 
include the data required in some form that can be used to construct an 
accounting disclosure record for individual records if required. Retain 
disclosure accounting records for 5 years after the disclosure or the 
life of the record, whichever is longer.
    (3) Make available to the individual to whom the record pertains all 
disclosure accountings except when the disclosure has been made to a law 
enforcement activity and the law enforcement activity has requested that 
disclosure not be made, or the system of records has been exempted from 
the requirement to furnish the disclosure accounting. If disclosure 
accountings are not maintained with the record and the individual 
requests access to the accounting, prepare a listing of all disclosures 
and provide this to the individual upon request.
    (h) Collecting personal information. (1) Collect to the greatest 
extent practicable personal information directly from the individual to 
whom it pertains if the information may be used in making any 
determination about the rights, privileges, or benefits of the 
individual under any Federal program.
    (2) When an individual is requested to furnish personal information 
about himself or herself for inclusion in a system of records, a Privacy 
Act Statement is required regardless of the medium used to collect the 
information (forms, personal interviews, stylized formats, telephonic 
interviews, or other methods). The statement enables the individual to 
make an informed decision whether to provide the information requested. 
If the personal information solicited is not to be incorporated into a 
system of records, the statement need not be given. The Privacy Act 
Statement shall be concise, current, and easily understood. It must 
include:
    (i) The specific Federal statute or Executive Order that authorizes 
collection of the requested information.
    (ii) The principal purpose or purposes for which the information is 
to be used.
    (iii) The routine uses that will be made of the information.
    (iv) Whether providing the information is voluntary or mandatory.
    (v) The effects on the individual if he or she chooses not to 
provide the requested information.
    (3) The Privacy Act Statement may appear as a public notice (sign or 
poster), conspicuously displayed in the area where the information is 
collected, such as at check-cashing facilities or identification 
photograph facilities. The individual normally is not required to sign 
the Privacy Act Statement. Provide the individual a written copy of the 
Privacy Act Statement upon request. This must be done regardless of the 
method chosen to furnish the initial advisement.
    (4) Include in the Privacy Act Statement specifically whether 
furnishing the requested personal data is mandatory or voluntary. A 
requirement to furnish personal data is mandatory only when a Federal 
statute, Executive order, regulation, or other lawful order specifically 
imposes a duty on the individual to provide the information sought, and 
the individual is subject to a penalty if he or she fails to provide the 
requested information. If providing the information is only a condition 
of a prerequisite to granting a benefit or privilege and the individual 
has the option of requesting the benefit or privilege, providing the 
information is always voluntary. However, the loss or denial of the 
privilege, benefit, or entitlement sought may be listed as a consequence 
of not furnishing the requested information.
    (5) It is unlawful for any Federal, state, or local government 
agency to deny an individual any right, benefit, or privilege provided 
by law because the individual refuses to provide his or

[[Page 972]]

her social security number (SSN). However, if a Federal statute requires 
that the SSN be furnished or if the SSN is required to verify the 
identity of the individual in a system of records that was established 
and in use before January 1, 1975, and the SSN was required as an 
identifier by a statute or regulation adopted before that date, this 
restriction does not apply.
    (i) When an individual is requested to provide his or her SSN, he or 
she must be told:
    (A) The uses that will be made of the SSN.
    (B) The statute, regulation, or rule authorizing the solicitation of 
the SSN.
    (C) Whether providing the SSN is voluntary or mandatory.
    (ii) Include in any systems notice for any system of records that 
contains SSNs a statement indicating the authority for maintaining the 
SSN and the source of the SSNs in the system. If the SSN is obtained 
directly from the individual indicate whether this is voluntary or 
mandatory.
    (iii) Upon entrance into Military Service of civilian employment 
with DoD, individuals are asked to provide their SSNs. The SSN becomes 
the service or employment number for the individual and is used to 
establish personnel, financial, medical, and other official records. 
After an individual has provided his or her SSN for the purpose of 
establishing a record, a Privacy Act Statement is not required if the 
individual is only requested to furnish or verify the SSNs for 
identification purposes in connection with the normal use of his or her 
records. However, if the SSN is to be written down and retained for any 
purpose by the requesting official, the individual must be provided a 
Privacy Act Statement.
    (6) DLAI 5530.1, Publications, Forms, Printing, Duplicating, 
Micropublishing, Office Copying, and Automated Information Management 
Programs,\2\ provides guidance on administrative requirements for 
Privacy Act Statements used with DLA forms. Forms subject to the Privacy 
Act issued by other Federal agencies have a Privacy Act Statement 
attached or included. Always ensure that the statement prepared by the 
originating agency is adequate for the purpose for which the form will 
be used by the DoD activity. If the Privacy Act Statement provided is 
inadequate, the activity concerned will prepare a new statement of a 
supplement to the existing statement before using the form. Forms issued 
by agencies not subject to the Privacy Act (state, municipal, and other 
local agencies) do not contain Privacy Act Statements. Before using a 
form prepared by such agencies to collect personal data subject to this 
part, an appropriate Privacy Act Statement must be added.
---------------------------------------------------------------------------

    \2\ Copies may be obtained from the Defense Logistics Agency, ATTN: 
DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-
6221.
---------------------------------------------------------------------------

    (i) Systems of records. (1) To be subject to this part, a ``system 
of records'' must consist of records retrieved by the name of an 
individual or some other personal identifier and be under the control of 
a DLA activity. Records in a group of records that may be retrieved by a 
name or personal identifier are not covered by this part. The records 
must be, in fact, retrieved by name or other personal identifier to 
become a system of records for the purpose of this part.
    (2) Retain in a system of records only that personal information 
which is relevant and necessary to accomplish a purpose required by a 
Federal statute or an Executive Order. The existence of a statute or 
Executive order mandating that maintenance of a system of records does 
not abrogate the responsibility to ensure that the information in the 
system of records is relevant and necessary.
    (3) Do not maintain any records describing how an individual 
exercises his or her rights guaranteed by the First Amendment of the 
U.S. Constitution unless expressly authorized by Federal statute or the 
individual. First Amendment rights include, but are not limited to, 
freedom of religion, freedom of political beliefs, freedom of speech, 
freedom of the press, the right to assemble, and the right to petition.
    (4) Maintain all personal information used to make any determination 
about an individual with such accuracy, relevance, timeliness, and 
completeness as is reasonably necessary to ensure

[[Page 973]]

fairness to the individual in making any such determination. Before 
disseminating any personal information from a system of records to any 
person outside DoD, other than a Federal agency, make reasonable efforts 
to ensure that the information to be disclosed is accurate, relevant, 
timely, and complete for the purpose it is being maintained.
    (5) Establish appropriate administrative, technical and physical 
safeguards to ensure that the records in every system of records are 
protected from unauthorized alteration or disclosure and that their 
confidentiality is protected. Protect the records against reasonably 
anticipated threats or hazards. Tailor safeguards specifically to the 
vulnerabilities of the system and the type of records in the system, the 
sensitivity of the personal information stored, the storage medium used 
and, to a degree, the number of records maintained.
    (i) Treat all unclassified records that contain personal information 
that normally would be withheld from the public as if they were 
designated ``For Official Use Only'' and safeguard them in accordance 
with the standards established by DLAR 5400.14 (32 CFR part 1285) even 
if they are not marked ``For Official Use Only.''
    (ii) Special administrative, physical, and technical procedures are 
required to protect data that are stored or being processed temporarily 
in an automated data processing (ADP) system or in a word processing 
activity to protect it against threats unique to those environments (see 
DLAR 5200.17, Security Requirements for Automated Information and 
Telecommunications Systems,\3\ and appendix D to this part).
---------------------------------------------------------------------------

    \3\ Copies may be obtained from the Defense Logistics Agency, ATTN: 
DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-
6221.
---------------------------------------------------------------------------

    (6) Dispose of records containing personal data so as to prevent 
inadvertent compromise. Disposal methods such as tearing, burning, 
melting, chemical decomposition, pulping, pulverizing, shredding, or 
mutilation are considered adequate if the personal data is rendered 
unrecognizable or beyond reconstruction.
    (i) The transfer of large quantities of records containing personal 
data (for example, computer cards and printouts) in bulk to a disposal 
activity, such as the Defense Property Disposal Office, is not a release 
of personal information under this part. The sheer volume of such 
transfers makes it difficult or impossible to identify readily specific 
individual records.
    (ii) When disposing of or destroying large quantities of records 
containing personal information, care must be exercised to ensure that 
the bulk of the records is maintained so as prevent specific records 
from being readily identified. If bulk is maintained, no special 
procedures are required.
    (7) When DLA contracts for the operation or maintenance of a system 
of records or a portion of a system of records by a contractor, the 
record system or the portion of the record system affected are 
considered to be maintained by DLA and are subject to this part. The 
activity concerned is responsible for applying the requirements of this 
part to the contractor. The contractor and its employees are to be 
considered employees of DLA for purposes of the sanction provisions of 
the Privacy Act during the performance of the contract. See the Federal 
Acquisition Regulation (FAR), section 24.000 (48 CFR chapter 1).
    (j) System Notices. (1) A notice of the existence of each system of 
records must be published in the Federal Register. While system notices 
are not subject to formal rulemaking procedures, advance public notice 
must be given before an activity may begin to collect personal 
information or use a new system of records. The notice procedures 
require that:
    (i) The system notice describes the contents of the record system 
and the routine uses for which the information in the system may be 
released.
    (ii) The public be given 30 days to comment on any proposed routine 
uses before implementation.
    (iii) The notice contains the date on which the system will become 
effective.

[[Page 974]]

    (2) Appendix A of this part discusses the specific elements required 
in a system notice. DLAH 5400.1 \4\ contains systems notices published 
by DLA.
---------------------------------------------------------------------------

    \4\ Copies may be obtained from the Defense Logistics Agency, ATTN: 
DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-
6221.
---------------------------------------------------------------------------

    (3) In addition to system notices, reports are required for new and 
altered systems of records. The criteria of these reports are outlined 
in appendixes B and C of this part. No report is required for amendments 
to existing systems which do not meet the criteria for altered record 
systems.
    (4) System managers shall evaluate the information to be included in 
each new system before establishing the system and evaluate periodically 
the information contained in each existing system of records for 
relevancy and necessity. Such a review will also occur when a system 
notice amendment or alteration is prepared. Consider the following:
    (i) The relationship of each item of information retained and 
collected to the purpose for which the system is maintained.
    (ii) The specific impact on the purpose or mission of not collecting 
each category of information contained in the system.
    (iii) The possibility of meeting the informational requirements 
through use of information not individually identifiable or through 
other techniques, such as sampling.
    (iv) The length of time each item of personal information must be 
retained.
    (v) The cost of maintaining the information.
    (vi) The necessity and relevancy of the information to the purpose 
for which it was collected.
    (5) Systems notices and reports of new and altered systems will be 
submitted to DLA Support Services (DSS-CA) as required.
    (k) Exemptions. The Director, DLA will designate the DLA records 
which are to be exempted from certain provisions of the Privacy Act. DLA 
Support Services (DSS-CA) will publish in the Federal Register 
information specifying the name of each designated system, the specific 
provisions of the Privacy Act from which each system is to be exempted, 
the reasons for each exemption, and the reason for each exemption of the 
record system.
    (1) General Exemptions. To qualify for a general exemption, as 
defined in the Privacy Act, the system of records must be maintained by 
a system manager who performs as his/her principal function any activity 
pertaining to the enforcement of criminal laws, including police efforts 
to prevent, control, or reduce crime or to apprehend criminals, and the 
activities or prosecutors, courts, correctional, probation, pardon, or 
parole authorities. Such system of records must consist of:
    (i) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and containing only identifying 
data and notations or arrests, the nature and disposition of criminal 
charges, sentencing, confinement, release, and parole, and probation 
status.
    (ii) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual.
    (iii) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (2) Specific exemption. To qualify for a specfic exemption, as 
defined by the Privacy Act, the systems of records must be:
    (i) Specifically authorized under criteria established by an 
Executive Order to be kept classified in the interest of national 
defense or foreign policy and are in fact properly classified pursuant 
to such Executive Order.
    (ii) Investigatory material compiled for law enforcement purposes 
other than material covered under a general exemption. However, an 
individual will not be denied access to information which has been used 
to deny him/her a right or privilege unless disclosure would reveal a 
source who furnished information to the Government under a promise that 
the identity of the source would be held in confidence. For 
investigations made after September 27, 1975, the identity of the source 
may be treated as confidential only if based on

[[Page 975]]

the expressed guarantee that the identity would not be revealed.
    (iii) Maintained in connection with providing protective services to 
the President of the United States or other individuals protected 
pursuant to 18 U.S.C. 3056.
    (iv) Used only to generate aggregate statistical data or for other 
similarly evaluative or analytic purposes, and which are not used to 
make decisions on the rights, benefits, or entitlements of individuals 
except for the disclosure of a census record permitted by 13 U.S.C. 8.
    (v) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, Military Service, Federal contracts, or access to 
classified information, but only to the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the source 
would be held in confidence, or prior to September 27 1975, under an 
implied promise that the identity of the source would be held in 
confidence.
    (vi) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service, the disclosure of which would compromise the objectivity or 
fairness of the testing or elimination process.
    (vii) Evaluation material used to determine potential for promotion 
in the Military Services, but only the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence or prior to September 27, 
1975, under an implied promise that the identity of the source would be 
held in confidence. System managers will specify those categories of 
individuals for whom pledges of confidentiality may be made when 
obtaining information on an individual's suitability for promotion.
    (viii) Exemption rules for DLA systems of records are published in 
appendix H of this part.
    (l) Matching Program Procedures. The OMB has issued special 
guidelines to be followed in programs that match the personal records in 
the computerized data bases of two or more Federal agencies by computer 
(see appendix E). These guidelines are intended to strike a balance 
between the interest of the Government in maintaining the integrity of 
Federal programs and the need to protect individual privacy 
expectations. They do not authorize matching programs as such and each 
matching program must be justified individually in accordance with the 
OMB guidelines.
    (1) Forward all requests for matching programs to include necessary 
routine use amendments and analysis and proposed matching program 
reports to DLA Support Services. Changes to existing matching programs 
shall be processed in the same manner as a new matching program report.
    (2) No time limits are set by the OMB guidelines. However, in order 
to establish a new routine use for a matching program, the amended 
system notice must have been published in the Federal Register at least 
30 days before implementation. Submit the documentation required above 
to DLA Support Services (DSS-CA) at least 60 days before the proposed 
initiation date of the matching program. Waivers to the 60 days' 
deadline may be granted for good cause shown. Requests for waivers will 
be in writing a fully justified.
    (3) For the purpose of the OMB guidelines, DoD and all DoD 
Components are considered a single agency. Before initiating a matching 
program using only the records of two or more DoD activities, notify DLA 
Support Services (DSS-CA) that the match is to occur. Further 
information may be requested from the activity proposing the match.
    (4) System managers shall review annually each system of records to 
determine if records from the system are being used in matching programs 
and whether the OMB Guidelines have been complied with.

[DLAR 5400.21, 51 FR 33595, Sept. 22, 1986, unless otherwise noted. 
Redesignated at 56 FR 57803, Nov. 14, 1991, as amended at 66 FR 41781, 
Aug. 9, 2001.

[[Page 976]]



Sec. 323.6  Forms and reports.

    DLA activities may be required to provide data under reporting 
requirements established by the Defense Privacy Office and DLA Support 
Services (DSS-CA). Any report established shall be assigned Report 
Control Symbol DD-DA&M(A)1379.

[66 FR 41782, Aug. 9, 2001]

 Appendix A to Part 323--Instructions for Preparation of System Notices

    A. System identification. See DLAH 5400.1.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the Defense Logistics Agency, ATTN: 
DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-
6221.
    \2\ [Reserved]
---------------------------------------------------------------------------

    B. System name. The name of the system reasonably identifies the 
general purpose of the system and, if possible, the general categories 
of individuals involved. Use acronyms only parenthetically following the 
title or any portion thereof, such as, ``Joint Uniform Military Pay 
System (JUMPS).'' Do not use acronyms that are not commonly known unless 
they are preceded by an explanation. The system name may not exceed 55 
character positions including punctuation and spacing.
    C. System location 1. For systems maintained in a single location 
provided the exact office name, organizational identity, and address or 
routing symbol. For geographically or organizationally decentralized 
systems, specify each level of organization or element that maintains a 
segment of the system. For automated data systems with a central 
computer facility and input/output terminals at several geographically 
separated location, list each location by category.
    2. When multiple locations are identified by type of organization, 
the system location may indicate that official mailing addresses are 
contained in an address directory published as an appendix to DLAH 
5400.1.
    3. If no address directory is used or the addresses in the directory 
are incomplete, the address of each location where a segment of the 
record system is maintained must appear under the ``System Location'' 
caption. Classified addresses are not listed, but the fact that they are 
classified is indicated. Use the standard U.S. Postal Service two letter 
state abbreviation symbols and zip codes for all domestic addresses.
    D. Categories of individuals covered by the system. Set forth the 
specific categories of individuals to whom records in the system pertain 
in clear, easily understood, nontechnical terms. Avoid the use of broad 
over-general descriptions, such as ``all DLA personnel'' or ``all 
civilian personnel'' unless this actually reflects the category of 
individuals involved.
    E. Categories of records in the system. Describe in clear, 
nontechnical terms the types of records maintained in the system. Only 
documents actually retained in the system of records will be described, 
not source documents that are used only to collect data and the 
destroyed.
    F. Authority for maintenance of the system. 1. Cite the specific 
provisions of the Federal statute or Executive Order that authorizes the 
maintenance of the system. Include with citations for statutes the 
popular names, when appropriate (for example, title 51, United States 
Code, section 2103, ``Tea-Tasters Licensing Act''), and for Executive 
Orders, the official title (for example, Executive Order 9397, 
``Numbering System for Federal Accounts Relative to Individual 
Persons'').
    2. For administrative housekeeping records, cite the directive 
establishing DLA as well as the Secretary of Defense authority to issue 
the directive. For example, `Pursuant to the authority contained in the 
National Security Act of 1947, as amended (10 U.S.C. 133d), the 
Secretary of Defense has issued DoD Directive 5105.22 (32 CFR part 398), 
Defense Logistics Agency (DLA), the charter of the Defense Logistics 
Agency (DLA) as a separate agency of the Department of Defense under 
this control. Therein, the Director, DLA, is charged with the 
responsibility of maintaining all necessary and appropriate records.'
    G. Purpose or purposes. List the specific purposes for maintaining 
the system of records by the activity. Include the use made of the 
information within DLA and the Department of Defense (so-called 
``internal routine uses'').
    H. Routine uses. 1. The blanket routine uses that appear in DLAH 
5400.1 \3\ apply to all systems notices unless the individual system 
notice specifically states that one or more of them do not apply to the 
system. For all other routine uses, when practical, list the specific 
activity to which the record may be released, to include any routine 
automated system interface (for example, ``to the Department of Justice, 
Civil Rights Compliance Division,'' ``to the Veterans Administration, 
Office of Disability Benefits,'' or ``to state and local health 
agencies'').
---------------------------------------------------------------------------

    \3\ Copies may be obtained from the Defense Logistics Agency, ATTN: 
DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-
6221.
---------------------------------------------------------------------------

    2. For each routine use identified, include a statement as to the 
purpose or purposes for which the record is to be released to the 
activity. Do not use general statements, such as, ``to other Federal 
agencies as required''

[[Page 977]]

and ``to any other appropriate Federal agency.''
    I. Policies and practices for storing, retiring, accessing, 
retaining, and disposing of records. This caption is subdivided into 
four parts:
    1. Storage. Indicate the medium in which the records are maintained. 
(For example, a system may be ``automated, maintained on magnetic tapes 
or disks,'' ``manual, maintained in paper files,'' or ``hybrid, 
maintained in a combination of paper and automated form.'') Storage does 
not refer to the container or facility in which the records are kept.
    2. Retrievability. Specify how the records are retrieved (for 
example, name and SSN, name, SSN) and indicate whether a manual or 
computerized index is required to retrieve individual records.
    3. Safeguards. List the categories of DLA personnel having immediate 
access and these responsible for safeguards (such as storage in safes, 
vaults, locked cabinets or rooms, use of guards, visitors registers, 
personnel screening, or computer ``fail-safe'' systems software). Do not 
describe safeguards in such detail as to compromise system security.
    4. Retention and disposal. Indicate how long the record is retained. 
When appropriate, state the length of time the records are maintained by 
the activity, when they are transferred to a Federal Records Center, 
length of retention at the Records Center and when they are transferred 
to the National Archives or are destroyed. A reference to DLAI 
5015.1,\4\ DLA Records Management Procedures and Records Schedules, or 
other issuances without further detailed information is insufficient.
---------------------------------------------------------------------------

    \4\ Copies may be obtained from the Defense Logistics Agency, ATTN: 
DSS-CV, 8725 John J. Kingman Road, Suite 2533, Fort Belvoir, VA 22060-
6221.
---------------------------------------------------------------------------

    J. System manager or managers and address. 1. List the title and 
address of the official responsible for the management of the system. If 
the title of the specific official is unknown, such as for a local 
system, specify the local commander or office head as the systems 
manager.
    2. For geographically separated or ogranizationally decentralized 
activities for which individuals may deal directly with officials at 
each location in exercising their rights, list the position or duty 
title of each category of officials responsible for the system or a 
segment thereof.
    3. Do not include business or duty addresses if they are listed in 
DLAH 5400.1.
    K. Notification procedures. 1. If the record system has been 
exempted from subsection (e)(4)(G) the Privacy Act, so indicate.
    2. For all nonexempt systems, describe how an individual may 
determine if there are records pertaining to him or her in the system. 
The procedural rules may be cited, but include a brief procedural 
description of the needed data. Provide sufficient information in the 
notice to allow an individual to exercise his or her rights without 
referrals to this part.
    3. As a minimum, the caption will include:
    a. The official title (normally the system manager) and official 
address to which request is to be directed.
    b. The specific information required to determine if there is a 
record of the individual in the system.
    c. Identification of the offices through which the individual may 
obtain access.
    d. A description of any proof of identity required.
    4. When appropriate, the individual may be referred to an activity 
official who shall provide this data to him or her.
    L. Record access procedures. 1. If the record system has been 
exempted from subsection (e)(4)(H) of the Privacy Act, so indicate.
    2. For all nonexempt record systems, describe the procedures under 
which individuals may obtain access to the record pertaining to them in 
the system. When appropriate, the individual may be referred to the 
system manager or activity official to obtain access procedures. Do not 
repeat the addresses listed in DLAH 5400.1, but refer the individual to 
that directory.
    M. Contesting record procedures. 1. If the record system has been 
exempted from subsection (e)(4)(H) of the Privacy Act, so indicate.
    2. For all nonexempt systems of records, state briefly how an 
individual may contest the content of a record pertaining to him or her 
in the system. The detailed procedures for contesting record accuracy, 
refusal of access or amendment, or initial review and appeal need not be 
included if they are readily available elsewhere and can be referred to 
by the public. (For example, ``The Defense Logistics Agency rules for 
contesting contents and for appealing initial determinations are 
contained in 32 CFR part.'') (DLAR 5400.21).
    3. The individual may also be referred to the system manager to 
determine these procedures.
    N. Record source categories. 1. If the record system has been 
exempted from subsection (e)(4)(I) of the Privacy Act, so indicate.
    2. For all nonexempt systems of records, list the sources of the 
information in the system. Specific individuals or institutions need not 
be identified by name, particularly if these sources have been granted 
confidentiality.
    O. System exempted from certain provisions of the Privacy Act. 1. If 
no exemption has been claimed for the system, indicate ``None.''
    2. If there is an exemption claimed, indicate specifically under 
which subsection of

[[Page 978]]

the Privacy Act is is claimed. Cite the regulation and CFR section 
containing the exemption rule for the system. (For example, ``Parts of 
this record system may be exempt under title 5, United States Code, 
sections 552a(k)2. and (5), as applicable. See exemption rules contained 
in 32 CFR part 323.'') (DLAR 5400.21).

[DLAR 5400.21, 51 FR 33595, Sept. 22, 1986. Redesignated and amended at 
56 FR 57803, Nov. 14, 1991; 66 FR 41781, Aug. 9, 2001]

   Appendix B to Part 323--Criteria for New and Altered Record Systems

    A. Criteria for a new record system. A new system of records is one 
for which there has been no system notice published in the Federal 
Register. If a notice for a system, of records has been canceled or 
deleted, before reinstating or reusing the system, a new system notice 
must be published in the Federal Register.
    B. Criteria for an altered record system. A system is considered 
altered whenever one of the following actions occurs or is proposed:
    1. A significant increase or change in the number or type of 
indiviudals about whom records are maintained.
    a. Only changes that alter significantly the character and purpose 
of the records system are considered alterations.
    b. Increases in numbers of individuals due to normal growth are not 
considered alterations unless they truly alter the character and purpose 
of the system.
    c. Increases that change significantly the scope of population 
covered (for example, expansion of a system of records covering a single 
PLFA's enlisted personnel to include all of DLA enlisted personnel would 
be considered an alteration).
    d. A reduction in the number of individual covered is not an 
alteration, but only an amendment.
    e. All changes that add new categories of individuals to system 
coverage require a change to the ``Categories of individuals covered by 
the system'' caption of the notice and may require changes to the 
``Purpose(s)'' caption.
    2. An expansion in the types or categories of information 
maintained.
    a. The addition of any new category of records not described under 
the ``Categories of Records in System'' caption is considered an 
alteration.
    b. Adding a new data element which is clearly within the scope of 
the categories of records described in the existing notice is an 
amendment.
    c. All changes under this criterion require a change to the 
``Categories of Records in System'' caption of the notice.
    3. An alteration in the manner in which the records are organized or 
the manner in which the records are indexed and retrieved.
    a. The change must alter the nature of use or scope of the records 
involved (for example, combining records systems in a reorganization).
    b. Any change under this critera requires a change in the 
``Retrievability'' caption of the system notice.
    c. If the records are no longer retrieved by name or personal 
identifier, cancel the system notice.
    4. A change in the purpose for which the information in the system 
is used.
    a. The new purpose must not be compatible with the existing purposes 
for which the system is maintained or a use that would not reasonably be 
expected to be an alteration.
    b. If the use is compatible and reasonably expected, there is no 
change in purpose and no alteration occurs.
    c. Any change under this criterion requires a change in the 
``Purpose(s)'' caption and may require a change in the ``Authority for 
maintenance of the system'' caption.
    5. Changes that alter the computer environment (such as changes to 
equipment configuration, software, or procedures) so as to create the 
potential for greater or easier access.
    a. Increasing the number of offices with direct access is an 
alteration.
    b. Software releases, such as operating systems and system utilities 
that provide for easier access are considered alterations.
    c. The addition of an on-line capability to a previously batch-
oriented system is an alteration.
    d. The addition of peripheral devices such as tape devices, disk 
devices, card readers, printers, and similar devices to an existing ADP 
system constitute an amendment if system security is preserved.
    e. Changes to existing equipment configuration with on-line 
capability need not be considered alterations to the system if:
    (1) The change does not alter the present security posture.
    (2) The addition of terminals does not extend the capacity of the 
current operating system and existing security is preserved.
    f. The connecting of two or more formerly independent automated 
systems or networks together creating a potential for greater access is 
an alteration.
    g. Any change under this caption requires a change to the 
``Storage'' caption element of the systems notice.
    C. Reports of new and altered systems. Submit a report of a new or 
altered system to DLA Support Services (DSS-CA) before collecting 
information and for using a new system or altering an existing system.
    D. Time restrictions on the operation of a new or altered system. 1. 
All time periods begin

[[Page 979]]

from the date OSD signs the transmittal letters on the reports to OMB 
and Congress. The specific time limits are:
    a. Sixty days must elapse before collection forms or fomal 
instructions pertaining to the system may be issued.
    b. Sixty days must elapse before the system may become operational.
    c. Sixty days must elapse before any public issuance of a Request 
for Proposal or Invitation to Bid for a new ADP or telecommunication 
system.
    Note: Requests for delegation of procurement authority may be 
submitted to the General Services Administration during the 60 days' 
waiting period, but these will include language that the Privacy Act 
reporting criteria have been reviewed and that a system report is 
required for such procurement.
    d. Normally 30 days must elapse before publication in the Federal 
Register of the notice of a new or altered system and the preamble to 
the Federal Register notice must reflect the date the transmittal 
letters to OMB and Congress were signed by OSD.
    2. Do not operate a system of records until the waiting periods have 
expired.
    E. Outside review of new and altered systems reports. If no 
objections are received within 30 days of a submission to the President 
of the Senate, Speaker of the House of Representatives, and the 
Director, OMB, of a new or altered system report, it is presumed that 
the new or altered systems have been approved as submitted.
    F. Waiver of time restrictions. 1. The OMB may authorize a Federal 
agency to begin operation of a system of records before the expiration 
of time limits described above. When seeking such a waiver, include in 
the letter of transmittal to DLA Support Services (CA) an explanation 
why a delay of 60 days in establishing the system of records would not 
be in the public interest. The transmittal must include:
    a. How the public interest will be affected adversely if the 
established time limits are followed.
    b. Why earlier notice was not provided.
    2. Under no circumstances will the routine uses for a new or altered 
system be implemented before 30 days have elapsed after publication of 
the system notice containing the routine uses in the Federal Register. 
This period cannot be waived.

[DLAR 5400.21, 51 FR 33595, Sept. 22, 1986. Redesignated and amended at 
56 FR 57803, Nov. 14, 1991; 66 FR 41782, Aug. 9, 2001]

 Appendix C to Part 323--Instructions for Preparation of Reports to New 
                           or Altered Systems

    The report on a new or altered system will consist of a transmittal 
letter, a narrative statement, and include supporting documentation.
    A. Transmittal Letter. The transmittal letter shall include any 
request for waivers. The narrative statement will be attached.
    B. Narrative Statement. The narrative statement is typed in double 
space on standard bond paper. The statement includes:
    1. System identification and name. This caption sets forth the 
identification and name of the system.
    2. Responsible official. The name, title, address, and telephone 
number of the official responsible for the report and to whom inquiries 
and comments about the report may be directed by Congress, the Office of 
Management and Budget, or Defense Privacy Office.
    3. Purpose of the system or nature of the change proposed. Describe 
the purpose of the new system. For an altered system, describe the 
nature of the change being proposed.
    4. Authority for the system. See enclosure 1 of this part.
    5. Number of individuals. The approximate number of individuals 
about whom records are to be maintained.
    6. Information on First Amendment activities. Describe any 
information to be kept on the exercise of the individual's First 
Amendment rights and the basis for maintaining it.
    7. Measures to ensure information accuracy. If the system is to be 
used to make determinations about the rights, benefits, or entitlements 
of individuals, describe the measures being established to ensure the 
accuracy, currency, relevance, and completeness of the information used 
for these purposes.
    8. Other measures to ensure system security. Describe the steps 
taken to minimize the risk of unauthorized access to the system. A more 
detailed assessment of security risks and specific administrative, 
technical, and physical safeguards will be available for review upon 
request.
    9. Relationship to state and local government activities. Describe 
the relationship of the system to state or local government activities 
that are the sources, recipients, or users of the information in the 
system.
    C. Supporting Documentation. Item 10 of the narrative is captioned 
Supporting Documents. A positive statement for this caption is essential 
for those enclosures that are not required to be enclosed. For example, 
``No changes to the existing DLA procedural or exemption rules (32 CFR 
part 323) are required for this proposed system.'' List in numerical 
sequence only those enclosures that are actually furnished. The 
following are typical enclosures that may be required:
    1. For a new system, an advance copy of the system notice which is 
proposed for publication; for an altered system an advance copy of the 
notice reflecting the specific changes proposed.

[[Page 980]]

    2. An advance copy of any proposed exemption rule if the new or 
altered system is to be exempted. If there is no exemption, so state in 
the narrative.
    3. Any other supporting documentation that may be pertinent or 
helpful in understanding the need for the system or clarifying its 
intended use. While not required, such documentation, when available, is 
helpful in evaluating the new or altered system.

[DLAR 5400.21, 51 FR 33595, Sept. 22, 1986. Redesignated and amended at 
56 FR 57803, Nov. 14, 1991]

     Appendix D to Part 323--Word Processing Center (WPC) Safeguards

    A. Minimum Standards of Protection. All personal data processed 
using word processing equipment will be afforded the standards of 
protection required by this regulation. The special considerations 
discussed in this enclosure are primarily for Word Processing Centers 
(WPCs) operating independent of the customer's function. However, 
managers of word processing systems are encouraged to consider and 
adopt, when appropriate, the special considerations described. WPCs that 
are not independent of a customer's function are not required to prepare 
formal written risk assessments.
    B. WPC Information Flow. In analyzing procedures required to 
safeguard adequately personal information in a WPC, the basic elements 
of WPC information flow and control must be considered. These are: 
Information receipt, information processing, information return, 
information storage and filing. WPCs do not control information 
acquisition or its ultimate use by the customers and, therefore, these 
are not addressed.
    C. Safeguarding Information During Receipt. 1. The word processing 
manager will establish procedures:
    a. That require each customer who requests that information subject 
to this DLAR be processed to identify specifically that information to 
the WPC personnel. This may be done by:
    (1) Providing a check-off type entry on the WPC work requests.
    (2) Requiring that the WPC work requests be stamped with a special 
legend, or that a special notation be made on the work requests.
    (3) Predesignating specifically a class of documents as coming 
within the provisions of this DLAR (such as, all officer effectiveness 
reports, all recall rosters, and all medical protocols).
    (4) Using a special cover sheet both to alert the WPC personnel as 
to the type information, and to protect the document during transmittal.
    (5) Requiring an oral warning on all dictation.
    (6) Any other procedures that ensure the WPC personnel are alerted 
to the fact that personal data subject to this DLAR is to be processed.
    b. To ensure that the operators or other WPC personnel who receive 
data for processing not identified as being under the provisions of this 
DLAR, but that appear to be personal, promptly call the information to 
the attention of the WPC supervisor or the customer.
    c. To ensure that any request for the processing of personal data 
which the customer has not identified as being in a system of record, 
and that appears to meet the criteria set forth in this regulation, is 
called to the attention of the appropriate supervisory personnel and 
system manager.
    2. The WPC supervisor will ensure that personal information is not 
inadvertently compromised within the WPC.
    D. Safeguarding Information During Processing. 1. Each WPC 
supervisor will establish internal safeguards that will protect personal 
data from compromise while it is being processed.
    2. Physical safeguards may include:
    a. Controls on individual access to the center.
    b. Machine configurations that reduce external access to the 
information being processed, or arrangements that alert the operator to 
the presence of others.
    c. Using certain specific machines to process personnal data.
    d. Any other physical safeguards, to include special technical 
arrangements that will protect the data during processing.
    3. Other safeguards may include:
    a. Using only certain selected operators to process personal data.
    b. Processing personal data only at certain times during the day 
without the WPC manager's specific authorization.
    c. Using only certain tapes or diskettes to process and store 
personal data.
    d. Using continuous tapes for dictation of personal data.
    e. Requiring all WPC copies of documents to be marked specifically 
so as to prevent inadvertent compromise.
    f. Returing extra copies and mistakes to the customer with the 
product.
    g. Disposing of waste containing personal data in a special manner.
    h. Any other local procedures that provide adequate protection to 
the data being processed.
    E. Safeguarding Information During Return. The WPC shall protect the 
data until it is returned to the customer or is placed into a formal 
distribution channel. In conjunction with the appropriate administrative 
support personnel and the WPC customers, the WPC manager will establish 
procedures that protect the information from the time word processing is 
completed until it is returned

[[Page 981]]

to the customer. Safeguarding procedures may include:
    1. Releasing products only to specifically identified individuals.
    2. Using sealed envelopes to transmit products to the customer.
    3. Using special cover sheets to protect products similar to the one 
discussed in above.
    4. Hand-carrying products to the customers.
    5. Using special messengers to return the products.
    6. Any other procedures that adequately protect products from 
compromise while they are awaiting return or being returned to the 
customer.
    F. Safeguards During Storage. The WPC manager shall ensure that all 
personal data retained in the center for any purpose (including samples) 
are protected properly. Safeguarding procedures may include:
    1. Marking will hard copies retained with special legends or 
designators.
    2. Storing media containing personal data in separate files or 
areas.
    3. Marking the storage containers for media containing personal data 
with special legends or notations.
    4. Restricting the reuse of media used to process personal data or 
erasing the media before reuse.
    5. Establishing special criteria for the WPC retention of media used 
to store and process personal data.
    6. Returning the media to the customer for retention with the file 
copies of the finished products.
    7. Discouraging, when practical, the long-term storage of personnal 
data in any form within the WPC.
    8. Any other filing or storage procedures that safeguard adequately 
any personal information retained or filed within the WPC.
    G. Risk Assessment for WPCs. 1. Each WPC manager will ensure that a 
formal, written risk assessment is prepared for each WPC that processes 
personal information subject to this regulation. The assessment will 
address the areas discussed in this enclosure, as well as any special 
risks that the WPC location, configuration, or organization may present 
to the compromise or alteration of personal data being processed or 
stored.
    2. A risk assessment will be conducted at least every 5 years or 
whenever there is a change of equipment, equipment configuration, WPC 
location, WPC configuration or modification of the WPC facilities that 
either increases or decreases the likelihood or compromise of personal 
data.
    3. Copies of the risk assessment will be retained by the WPC manager 
and made available to appropriate inspectors, as well as to personnel 
studying equipment for facility upgrading of personal data.
    H. Special Considerations in WPC Design and Modification. Procedures 
will be established to ensure that all personnel involved in the design 
of WPCs or the acquisition of word processing equipment are aware of the 
special considerations required when processing personal data subject to 
this DLAR.

      Appendix E to Part 323--OMB Guidelines for Matching Programs

    A. Purpose. These guidelines supplement and will be used in 
conjunction with OMB Guidelines on the Administration of the Privacy Act 
of 1974, issued on July 1, 1975, and supplemented on November 21, 1975. 
They replace earlier guidance on conducting computerized matching 
programs issued on March 30, 1979. They are intended to help agencies 
relate the procedural requirements of the Privacy Act to the operational 
requirements of computerized matching. They are designed to address the 
concern expressed by the Congress in the Privacy Act of 1974 that ``the 
increasing use of computers and sophisticated information technology, 
while essential to the efficient operation of the Government, has 
greatly magnified the harm to individual privacy that can occur from any 
collection, maintenance, use, or dissemination of personal 
information.'' These guidelines do not authorize activities that are not 
permitted by law, nor do they prohibit activities expressly required to 
be performed by law. Complying with these guidelines, however, does not 
relieve a Federal agency of the obligation to comply with the provisions 
of the Privacy Act, including any provisions not cited in these 
guidelines.
    B. Scope. These guidelines apply to all agencies subject to the 
Privacy Act of 1974 (5 U.S.C. 552a) and to all matching programs:
    1. Performed by a Federal agency, whether the personal records used 
in the match are Federal or nonfederal.
    2. For which a Federal agency discloses any personal records for use 
in a matching program performed by any other Federal agency or any 
nonfederal organization.
    C. Effective Date. These guidelines were effective on May 11, 1982.
    D. Definitions. For the purpose of the Guidelines, all the terms 
defined in the Privacy Act of 1974 apply.
    1. Personal Record. Any information pertaining to an individual that 
is stored in an automated system of records; for example, a data base 
which contains information about individuals that is retrieved by name 
or some other personal identifier.
    2. Matching Program. A procedure in which a computer is used to 
compare two or more automated systems of records or a system of records 
with a set of nonfederal records to find individuals who are common to 
more than one system or set. The procedure includes all of the steps 
associated with the

[[Page 982]]

match, including obtaining the records to be matched, actual use of the 
computer, administrative and investigative action on the hits, and 
disposition of the personal records maintained in connection with the 
match. It should be noted that a single matching program may involve 
several matches among a number of participants. Watching programs do not 
include the following:
    a. Matches which compare a substantial number of records, such as, 
comparison of the Department of Education's defaulted student loan data 
base with the Office of Personnel Management's Federal employee data 
base would be covered; comparison of six individual student loan 
defaultees with the OPM file would not be covered.
    b. Checks on specific individuals to verify data in an application 
for benefits done reasonably soon after the application is received.
    c. Checks on specific individuals based on information which raises 
questions about an individual's eligibility for benefits or payments 
done reasonably soon after the information is received.
    d. Matches done to produce aggregate statistical data without any 
personal identifiers.
    e. Matches done to support any research or statistical project when 
the specfic data are not to be used to make decisions about the rights, 
benefits, or privileges of specific individuals.
    f. Matches done by an agency using its own records.
    3. Matching Agency. The Federal agency which actually performs the 
match.
    4. Source Agency. The Federal agency which discloses records from a 
system of records to be used in the match. Note that in some 
circumstances a source agency may be the instigator and ultimate 
beneficiary of the matching program, as when an agency lacking computer 
resources uses another agency to perform the match. The disclosure of 
records to the matching agency and any later disclosure of ``hits'' (by 
either the matching or the source agencies) must be done in accordance 
with the provisions of paragraph (b) of the Privacy Act.
    5. Hit. The identification, through a matching program, of a 
specific individual.
    E. Guidelines for Agencies Participating in Matching Programs. 
Agencies should acquire and disclose matching records and conduct 
matching programs in accordance with the provisions of this section and 
the Privacy Act.
    1. Disclosing Personal Records for Matching Programs--
    a. To another Federal agency. Source agencies are responsible for 
determining whether or not to disclose personal records from their 
systems and for making sure they meet the necessary Privacy Act 
disclosure provisions when they do. Among the factors source agencies 
should consider are:
    (1) Legal authority for the match.
    (2) Purpose and description of the match.
    (3) Description of the records to be matched.
    (4) Whether the record subjects have consented to the match; or 
whether disclosure of records for the match would be compatible with the 
purpose for which the records were originally collected; that is, 
whether disclosure under a ``routine use'' would be appropriate; whether 
the soliciting agency is seeking the records for a legitimate law 
enforcement activity--whichever is appropriate; or any other provision 
of the Privacy Act under which disclosure may be made.
    (5) Description of additional information which may be subsequently 
disclosed in relation to ``hits.''
    (6) Subsequent actions expected of the source (for example, 
verification of the identity of the ``hits'' or followup with 
individuals who are ``hits'').
    (7) Safeguards to be afforded the records involved, including 
disposition.
    b. If the agency is satisfied that disclosure of the records would 
not violate its responsibilities under the Privacy Act, it may proceed 
to make the disclosure to the matching agency. It should ensure that 
only the minimum information necessary to conduct the match is provided. 
If disclosure is to be made pursuant to a ``routine use'' (Section b.3. 
of the Privacy Act), it should ensure that the system of records 
contains such a use, or it should publish a routine use notice in the 
Federal Register. The agency should also be sure to maintain an 
accounting of the disclosure pursuant to Section (c) of the Privacy Act.
    c. To a nonfederal entity. Before disclosing records to a nonfederal 
entity for a matching program to be carried out by that entity, a source 
agency should, in addition to all of the consideration in subparagraph 
a, above, also make reasonable efforts, pursuant to Section (e)(6) of 
the Privacy Act, to ``assure that such records are accurate, complete, 
timely, and relevant for agency purposes.''
    2. Written Agreements. Before disclosing to either a Federal or non-
Federal entity, the source agency should require the matching entity to 
agree in writing to certain conditions governing the use of the matching 
file; for example, that the matching file will remain the property of 
the source agency and be returned at the end of the matching program (or 
destroyed as appropriate); that the file will be used and accessed only 
to match the file or files previously agreed to; that it will not be 
used to extract information concerning ``non-hit'' individuals for any 
purpose, and that it will not be duplicated or disseminated within or 
outside the matching agency unless authorized in writing by the source 
agency.

[[Page 983]]

    3. Performing Matching Programs--
    a. Matching agencies should maintain reasonable administrative, 
technical, and physical security safeguards on all files involved in the 
matching program.
    b. Matching agencies should ensure that they have appropriate 
systems of records including those containing ``hits,'' and that such 
systems and any routine uses have been appropriately notices in the 
Federal Register and reported to OMB and the Congress.
    4. Disposition of Records--
    a. Matching agencies will return or destroy source matching files 
(by mutual agreement) immediately after the match.
    b. Records relating to this will be kept only so long as an 
investigation, either criminal or administrative, is active, and will be 
disposed of in accordance with the requirements of the Privacy Act and 
the Federal Records Act.
    5. Publication Requirements--
    a. Agencies, before disclosing records outside the agency, will 
publish appropriate ``routine use'' notices in the Federal Register, if 
necessary.
    b. If the matching program will result in the creation of a new or 
the substantial alteration of an existing system of records, the agency 
involved should publish the appropriate Federal Register notice and 
submit the requisite report to OMB and the Congress pursuant to OMB 
Circular No. A-108.
    6. Reporting Requirements--
    a. As close to the initiation of the matching program as possible, 
matching agencies will publish in the Federal Register a brief public 
notice describing the matching program. The notice should include:
    1. The legal authority under which the match is being conducted.
    2. A description of the matching program including whether the 
program is one time or continuing, the organizations involved, the 
purpose or purposes for which the program is being conducted, and the 
procedures to be used in matching and following up on the ``hits.''
    3. A complete description of the personal records to be matched, 
including the source or sources, system of records identifying data, 
date or dates and page number of the most recent Federal Register full 
text publication when appropriate.
    4. The projected start and ending dates of the program.
    5. The security safeguards to be used to protect against 
unauthorized access or disclosure of the personal records.
    6. Plans for disposition of the source records and ``hits.''
    7. Agencies should send a copy of this notice to the Congress and to 
OMB at the same time it is sent to the Federal Register.
    a. Agencies should report new or altered systems of records as 
described in subparagraph 5b, above, as necessary.
    b. Agencies should also be prepared to report on matching programs 
pursuant to the reporting requirements of either the Privacy Act or the 
Paperwork Reduction Act. Reports will be solicited by the Office of 
Information and Regulatory Affairs and will focus on both the protection 
of individual privacy and Government's effective use of information 
technology. Reporting instructions will be disseminated to the agencies 
as part of either the reports required by paragraph (p) of the Privacy 
Act, or section 3514 of Pub. L. 96-511.
    8. Use of Contractors. Matching programs should, as far as 
practicable, be conducted ``in-house'' by Federal agencies using agency 
personnel, rather than by contract. When contractors are used:
    a. The matching agency should, consistent with paragraph (m) of the 
Privacy Act, cause the requirements of that Privacy Act to be applied to 
the contractor's performance of the matching program. The contract 
should include the Privacy Act clause required by Federal Personnel 
Regulation Amendment 155 (41 CFR 1-1.337-5).
    b. The terms of the contract should include appropriate privacy and 
security provisions consistent with policies, regulations, standards, 
and guidelines issued by OMB, GSA, and the Department of Commerce.
    c. The terms of the contract should preclude the contractor from 
using, disclosing, copying, or retaining records associated with the 
matching program for the contractor's own use.
    d. Contractor personnel involved in the matching program shall be 
made explicitly aware of their obligations under the Privacy Act and of 
these guidelines, agency rules, and any special safegurds in relation to 
each specific match performed.
    e. Any disclosures of records by the agency to the contractor should 
be made pursuant to a ``routine use'' (5 U.S.C. 552a(b)(3)).
    F. Implementation and Oversight. OMB will oversee the implementation 
of these guidelines and will interpret and advise upon agency proposals 
and actions within their scope, consistent with section 6 of the Privacy 
Act.

             Appendix F to Part 323--Litigation Status Sheet

    1. Case Number.\1\
---------------------------------------------------------------------------

    \1\ Number used by the Component for reference purposes.
---------------------------------------------------------------------------

    2. Requester.
    3. Document Title or Description.\2\
---------------------------------------------------------------------------

    \2\ Indicate the nature of the case, such as ``Denial of access,'' 
``Refusal to amend,'' ``Incorrect records,'' or other violations of the 
Act (specify).
---------------------------------------------------------------------------

    4. Litigation.
    a. Date Complaint Filed.

[[Page 984]]

    b. Court.
    c. Case File Number.\1\
    5. Defendants (DoD Component and individual).
    6. Remarks (brief explanation of what the case is about).
    7. Court Action.
    a. Court's Finding.
    b. Disciplinary Action (as appropriate).
    8. Appeal (as appropriate).
    a. Date Complaint File.
    b. Court.
    c. Case File Number.\1\
    d. Court's Finding.
    e. Disciplinary Action (as appropriate).

         Appendix G to Part 323--Privacy Act Enforcement Actions

    A. Administrative Remedies. Any individual who feels he or she has a 
legitimate complaint or grievance against the Defense Logistics Agency 
or any DLA employee concerning any right granted by this DLAR will be 
permitted to seek relief through appropriate administrative channels.
    B. Civil Actions. An individual may file a civil suit against DLA or 
its employees if the individual feels certain provisions of the Privacy 
Act have been violated (see 5 U.S.C. 552a(g), reference (b).)
    C. Civil Remedies. In addition to specific remedial actions, the 
Privacy Act provides for the payment of damages, court cost, and 
attorney fees in some cases.
    D. Criminal Penalties--
    1. The Privacy Act also provides for criminal penalties (see 5 
U.S.C. 552a(1).) Any official or employee may be found guilty of a 
misdemeanor and fined not more than $5,000 if he or she willfully 
discloses personal information to anyone not entitled to receive the 
information, or maintains a system of records without publishing the 
required public notice in the Federal Register.
    2. A person who requests or obtains access to any record concerning 
another individual under false pretenses may be found guilty of a 
misdemeanor and fined up to $5,000.

               Appendix H to Part 323--DLA Exemption Rules

    Exempted Records Systems. All systems of records maintained by the 
Defense Logistics Agency will be exempt from the requirements of 5 
U.S.C. 552a(d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the 
system contains any information properly classified under Executive 
Order 12958 and which is required by the Executive Order to be kept 
secret in the interest of national defense or foreign policy. This 
exemption, which may be applicable to parts of all systems of records, 
is necessary because certain record systems not otherwise specifically 
designated for exemptions herein may contain isolated items of 
information which have been properly classified.

               a. ID: S500.10 DLA-I (Specific exemption).

    1. System name: Personnel Security Files.
    2. Exemption: This system of records is exempted from the following 
provisions of title 5, United States Code, section 552a: (c)(3); (d); 
and (e)(1).
    3. Authority: 5 U.S.C. 552a(k)(2).
    4. Reasons: The investigatory reports are used by appropriate 
Security Officers and Commanders or other designated officials as a 
basis for determining a persons's eligibility for access to information 
classified in the interests of national defense.

               b. ID: S500.20 DLA-I (Specific exemption).

    1. System name: Criminal Incident/Investigations File.
    2. Exemption: This system of records is exempted from the following 
provisions of the Title 5, United States Code, section 552a: (c)(3); 
(d); and (e)(1).
    3. Authority: 5 U.S.C. 552a(k)(2).
    4. Reasons: Granting individuals access to information collected and 
maintained by this component relating to the enforcement of criminal 
laws could interfere with orderly investigations, with the orderly 
administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction or fabrication of evidence and 
jeopardize the safety and well being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources and methods used by this component and 
could result in the invasion of privacy of individuals only incidentally 
related to an investigation. Investigatory material is exempt to the 
extent that the disclosure of such material would reveal the identity of 
a source who furnished the information to the Government under an 
express promise that the identity of the source would be held in 
confidence, or prior to September 27, 1975 under an implied promise that 
the identity of the source would be held in confidence. This exemption 
will protect the identities of certain sources who would be otherwise 
unwilling to provide information to the Government. The exemption of the 
individual's right of access to his records and the reasons therefore 
necessitate the exemptions of this system of records from the 
requirements of the other cited provisions.

               c. ID: S100.50 DLA-GC (Specific exemption).

    1. System name: Fraud and Irregularities.
    2. Exemption: This system of records is exempt from the provisions 
of 5 U.S.C.

[[Page 985]]

552a(c)(3), (d)(1) through (4), (e)(1), (e)(4)(G), (H), and (I), and 
(f).
    3. Authorities: 5 U.S.C. 552a(k)(2) and (k)(5).
    4. Reasons: From subsection (c)(3) because granting access to the 
accounting for each disclosure as required by the Privacy Act, including 
the date, nature, and purpose of each disclosure and the identity of the 
recipient, could alert the subject to the existence of the investigation 
or prosecutive interest by DLA or other agencies. This could seriously 
compromise case preparation by prematurely revealing its existence and 
nature; compromise or interfere with witnesses or make witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    From subsections (d)(1) through (d)(4) and (f) because providing 
access to records of a civil investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach in order to 
satisfy any Government claim growing out of the investigation or 
proceeding.
    From subsection (e)(1) because it is not always possible to detect 
the relevance or necessity of each piece of information in the early 
stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    From subsections (e)(4)(G) and (H) because there is no necessity for 
such publication since the system of records will be exempt from the 
underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    From subsection (e)(4)(I) because to the extent that this provision 
is construed to require more detailed disclosure than the broad, generic 
information currently published in the system notice, an exemption from 
this provision is necessary to protect the confidentiality of sources of 
information and to protect privacy and physical safety of witnesses and 
informants. DLA will, nevertheless, continue to publish such a notice in 
broad generic terms as is its current practice.

                 d. ID: S100.10 GC (Specific exemption).

    1. System name: Whistleblower Complaint and Investigation Files.
    2. Exemption: Portions of this system of records may be exempt under 
the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), (e)(1), 
(e)(4)(G), (e)(4)(H), and (e)(4)(I), and (f).
    3. Authority: 5 U.S.C. 552a(k)(2).
    4. Reasons: From subsection (c)(3) because granting access to the 
accounting for each disclosure as required by the Privacy Act, including 
the date, nature, and purpose of each disclosure and the identity of the 
recipient, could alert the subject to the existence of the investigation 
or prosecutive interest by DLA or other agencies. This could seriously 
compromise case preparation by prematurely revealing its existence and 
nature; compromise or interfere with witnesses or make witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    From subsections (d)(1) through (d)(4), and (f) because providing 
access to records of a civil investigation and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach in order to 
satisfy any Government claim growing out of the investigation or 
proceeding.
    From subsection (e)(1), because it is not always possible to detect 
the relevance or necessity of each piece of information in the early 
stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    From subsections (e)(4)(G) and (e)(4)(H) because there is no 
necessity for such publication since the system of records will be 
exempt from the underlying duties to provide notification about and 
access to information in the system and to make amendments to and 
corrections of the information in the system. However, DLA will continue 
to publish such a notice in broad generic terms as is its current 
practice.
    From subsection (e)(4)(I) because to the extent that this provision 
is construed to require more detailed disclosure than the broad, generic 
information currently published in the system notice, an exemption from 
this provision is necessary to protect the confidentiality of sources of 
information and to protect privacy and physical safety of witnesses and 
informants. DLA will, nevertheless, continue to publish such a notice in

[[Page 986]]

broad generic terms as is its current practice.
    e. ID: S500.60 CA (Specific exemption).
    1. System name: DLA Complaint Program Records.
    2. Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    3. Authority: 5 U.S.C. 552a(k)(2) and (k)(5), subsections (c)(3), 
(d)(1) through (d)(4), (e)(1), (e)(4)(G), (H), and (I), and (f).
    4. Reasons: (i) From subsection (c)(3) because to grant access to an 
accounting of disclosures as required by the Privacy Act, including the 
date, nature, and purpose of each disclosure and the identity of the 
recipient, could alert the subject to the existence of the investigation 
or prosecutive interest by DLA or other agencies. This could seriously 
compromise case preparation by prematurely revealing its existence and 
nature; compromise or interfere with witnesses or make witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    (ii) From subsections (d)(1) through (d)(4), and (f) because 
providing access to records of a civil or administrative investigation 
and the right to contest the contents of those records and force changes 
to be made to the information contained therein would seriously 
interfere with and thwart the orderly and unbiased conduct of the 
investigation and impede case preparation. Providing access rights 
normally afforded under the Privacy Act would provide the subject with 
valuable information that would allow interference with or compromise of 
witnesses or render witnesses reluctant to cooperate; lead to 
suppression, alteration, or destruction of evidence; enable individuals 
to conceal their wrongdoing or mislead the course of the investigation; 
and result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach in order to satisfy any 
Government claim growing out of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for law enforcement purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. DLA will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    f. ID: S500.30 CAAS (Specific exemption).
    1. System name: Incident Investigation/Police Inquiry Files.
    2. Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of the 
information, the individual will be provided access to the information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    3. Authority: 5 U.S.C. 552a(k)(2) and (k)(5), subsections (c)(3), 
(d)(1) through (d)(4), (e)(1), (e)(4)(G), (H), and (I), and (f).
    4. Reasons: (i) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutive interest by DLA or other agencies. This 
could seriously compromise case preparation by prematurely revealing its 
existence and nature; compromise or interfere with witnesses or make 
witnesses reluctant to cooperate; and lead to suppression, alteration, 
or destruction of evidence.
    (ii) From subsections (d)(1) through (d)(4), and (f) because 
providing access to records of a civil or administrative investigation 
and the right to contest the contents of those

[[Page 987]]

records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for law enforcement purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. DLA will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.

[DLAR 5400.21, 51 FR 33595, Sept. 22, 1986. Redesignated at 56 FR 57803, 
Nov. 14, 1991, as amended at 55 FR 32913, Aug. 13, 1990; 57 FR 40609, 
Sept. 4, 1992; 59 FR 9668, Mar. 1, 1994; 60 FR 3088, Jan. 13, 1995; 61 
FR 2916, Jan. 30, 1996; 63 FR 25772, May 11, 1998; 65 FR 18900, Apr. 10, 
2000]



PART 324_DFAS PRIVACY ACT PROGRAM--Table of Contents




                      Subpart A_General Information

Sec.
324.1 Issuance and purpose.
324.2 Applicability and scope.
324.3 Policy.
324.4 Responsibilities.

                      Subpart B_Systems of Records

324.5 General information.
324.6 Procedural rules.
324.7 Exemption rules.

                 Subpart C_Individual Access to Records

324.8 Right of access.
324.9 Notification of record's existence.
324.10 Individual requests for access.
324.11 Denials.
324.12 Granting individual access to records.
324.13 Access to medical and psychological records.
324.14 Relationship between the Privacy Act and the Freedom of 
          Information Act.

Appendix A to Part 324--DFAS Reporting Requirements
Appendix B to Part 324--System of Records Notice

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

    Source: 61 FR 25561, May 22, 1996, unless otherwise noted.



                      Subpart A_General information



Sec. 324.1  Issuance and purpose.

    The Defense Finance and Accounting Service fully implements the 
policy and procedures of the Privacy Act and the DoD 5400.11-R \1\, 
`Department of Defense Privacy Program' (see 32 CFR part 310). This 
regulation supplements the DoD Privacy Program only to establish policy 
for the Defense Finance and Accounting Service (DFAS) and provide DFAS 
unique procedures.
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    \1\ Copies may be obtained at cost from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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Sec. 324.2  Applicability and scope.

    This regulation applies to all DFAS, Headquarters, DFAS Centers, the 
Financial System Organization (FSO), and other organizational 
components. It applies to contractor personnel who have entered a 
contractual agreement with DFAS. Prospective contractors will be advised 
of their responsibilities under the Privacy Act Program.



Sec. 324.3  Policy.

    DFAS personnel will comply with the Privacy Act of 1974, the DoD 
Privacy Program and the DFAS Privacy Act Program. Strict adherence is 
required to ensure uniformity in the implementation of the DFAS Privacy 
Act Program and to create conditions that will

[[Page 988]]

foster public trust. Personal information maintained by DFAS 
organizational elements will be safeguarded. Information will be made 
available to the individual to whom it pertains to the maximum extent 
practicable. Specific DFAS policy is provided for Privacy Act training, 
responsibilities, reporting procedures and implementation requirements. 
DFAS Components will not define policy for the Privacy Act Program.



Sec. 324.4  Responsibilities.

    (a) Director, DFAS. (1) Ensures the DFAS Privacy Act Program is 
implemented at all DFAS locations.
    (2) The Director, DFAS, will be the Final Denial Appellate 
Authority. This authority may be delegated to the Director for Resource 
Management.
    (3) Appoints the Director for External Affairs and Administrative 
Support, or a designated replacement, as the DFAS Headquarters Privacy 
Act Officer.
    (b) DFAS Headquarters General Counsel. (1) Ensures uniformity is 
maintained in legal rulings and interpretation of the Privacy Act.
    (2) Consults with DoD General Counsel on final denials that are 
inconsistent with other final decisions within DoD. Responsible to raise 
new legal issues of potential significance to other Government agencies.
    (3) Provides advice and assistance to the DFAS Director, Center 
Directors, and the FSO as required, in the discharge of their 
responsibilities pertaining to the Privacy Act.
    (4) Acts as the DFAS focal point on Privacy Act litigation with the 
Department of Justice.
    (5) Reviews Headquarters' denials of initial requests and appeals.
    (c) DFAS Center Directors. (1) Ensures that all DFAS Center 
personnel, all personnel at subordinate levels, and contractor personnel 
working with personal data comply with the DFAS Privacy Act Program.
    (2) Serves as the DFAS Center Initial Denial Authority for requests 
made as a result of denying release of requested information at 
locations within DFAS Center authority. Initial denial authority may not 
be redelegated. Initial denial appeals will be forwarded to the 
appropriate DFAS Center marked to the attention of the DFAS Center 
Initial Denial Authority.
    (d) Director, FSO. (1) Ensures that FSO and subordinate personnel 
and contractors working with personal data comply with the Privacy Act 
Program.
    (2) Serves as the FSO Initial Denial Authority for requests made as 
a result of denying release of requested information at locations within 
FSO authority. FSO Initial denial authority may not be redelegated.
    (3) Appoints a Privacy Act Officer for the FSO and each Financial 
System Activity (FSA).
    (e) DFAS Headquarters Privacy Act Officer. (1) Establishes, issues 
and updates policy for the DFAS Privacy Act Program and monitors 
compliance. Serves as the DFAS single point of contact on all matters 
concerning Privacy Act policy. Resolves any conflicts resulting from 
implementation of the DFAS Privacy Act Program policy.
    (2) Serves as the DFAS single point of contact with the Department 
of Defense Privacy Office. This duty may be delegated.
    (3) Ensures that the collection, maintenance, use and/or 
dissemination of records of identifiable personal information is for a 
necessary and lawful purpose, that the information is current and 
accurate for the intended use and that adequate security safeguards are 
provided.
    (4) Monitors system notices for agency systems of records. Ensures 
that new, amended, or altered notices are promptly prepared and 
published. Reviews all notices submitted by the DFAS Privacy Act 
Officers for correctness and submits same to the Department of Defense 
Privacy Office for publication in the Federal Register. Maintains and 
publishes a listing of DFAS Privacy Act system notices.
    (5) Establishes DFAS Privacy Act reporting requirement due dates. 
Compiles all Agency reports and submits the completed annual report to 
the Defense Privacy Office. DFAS reporting requirements are provided in 
appendix A to this part.
    (6) Conducts annual Privacy Act Program training for DFAS 
Headquarters

[[Page 989]]

(HQ) personnel. Ensures that subordinate DFAS Center and FSO Privacy Act 
Officers fulfill annual training requirements.
    (f) FSO and Financial System Activities (FSAs) Legal Support. The 
FSO and subordinate FSA organizational elements will be supported by the 
appropriate DFAS-HQ or DFAS Center General Counsel office.
    (g) DFAS Center(s) Assistant General Counsel. (1) Ensures uniformity 
is maintained in legal rulings and interpretation of the Privacy Act and 
this regulation. Consults with the DFAS-HQ General Counsel as required.
    (2) Provides advice and assistance to the DFAS Center Director and 
the FSA in the discharge of his/her responsibilities pertaining to the 
Privacy Act.
    (3) Coordinates on DFAS Center and the FSA denials of initial 
requests.
    (h) DFAS Center Privacy Act Officer. (1) Implements and administers 
the DFAS Privacy Act Program for all personnel, to include contractor 
personnel, within the Center, Operating Locations (OpLocs) and Defense 
Accounting Offices (DAOs).
    (2) Ensures that the collection, maintenance, use, or dissemination 
of records of identifiable personal information is in a manner that 
assures that such action is for a necessary and lawful purpose; the 
information is timely and accurate for its intended use; and that 
adequate safeguards are provided to prevent misuse of such information. 
Advises the Program Manager that systems notices must be published in 
the Federal Register prior to collecting or maintenance of the 
information. Submits system notices to the DFAS-HQ Privacy Act Officer 
for review and subsequent submission to the Department of Defense 
Privacy Office.
    (3) Administratively controls and processes Privacy Act requests. 
Ensures that the provisions of this regulation and the DoD Privacy Act 
Program are followed in processing requests for records. Ensures all 
Privacy Act requests are promptly reviewed. Coordinates the reply with 
other organizational elements as required.
    (4) Prepares denials and partial denials for the Center Director's 
signature and obtain required coordination with the assistant General 
Counsel. Responses will include written justification citing a specific 
exemption or exemptions.
    (5) Prepares input for the annual Privacy Act Report as required 
using the guidelines provided in appendix A to this part.
    (6) Conducts training on the DFAS Privacy Act Program for Center 
personnel.
    (i) FSO Privacy Act Officer. (1) Implements and administers the DFAS 
Privacy Act Program for all personnel, to include contractor personnel, 
within the FSO.
    (2) Ensures that the collection, maintenance, use, or dissemination 
of records of identifiable personal information is in a manner that 
assures that such action is for a necessary and lawful purpose; the 
information is timely and accurate for its intended use; and that 
adequate safeguards are provided to prevent misuse of such information. 
Advises the Program Manager that systems notices must be published in 
the Federal Register prior to collecting or maintenance of the 
information. Submits system notices to the DFAS-HQ Privacy Act Officer 
for review and subsequent submission to the Department of Defense 
Privacy Office.
    (3) Administratively controls and processes Privacy Act requests. 
Ensures that the provisions of this regulation and the DoD Privacy Act 
Program are followed in processing requests for records. Ensure all 
Privacy Act requests are promptly reviewed. Coordinate the reply with 
other organizational elements as required.
    (4) Prepares denials and partial denials for signature by the 
Director, FSO and obtains required coordination with the assistant 
General Counsel. Responses will include written justification citing a 
specific exemption or exemptions.
    (5) Prepares input for the annual Privacy Act Report (RCS: DD 
DA&M(A)1379) as required using the guidelines provided in appendix A to 
this part.
    (6) Conducts training on the DFAS Privacy Act Program for FSO 
personnel.

[[Page 990]]

    (j) DFAS employees. (1) Will not disclose any personal information 
contained in any system of records, except as authorized by this 
regulation.
    (2) Will not maintain any official files which are retrieved by name 
or other personal identifier without first ensuring that a system notice 
has been published in the Federal Register.
    (3) Reports any disclosures of personal information from a system of 
records or the maintenance of any system of records not authorized by 
this regulation to the appropriate Privacy Act Officer for action.
    (k) DFAS system managers (SM). (1) Ensures adequate safeguards have 
been established and are enforced to prevent the misuse, unauthorized 
disclosure, alteration, or destruction of personal information contained 
in system records.
    (2) Ensures that all personnel who have access to the system of 
records or are engaged in developing or supervising procedures for 
handling records are totally aware of their responsibilities to protect 
personal information established by the DFAS Privacy Act Program.
    (3) Evaluates each new proposed system of records during the 
planning stage. The following factors should be considered:
    (i) Relationship of data to be collected and retained to the purpose 
for which the system is maintained. All information must be relevant to 
the purpose.
    (ii) The impact on the purpose or mission if categories of 
information are not collected. All data fields must be necessary to 
accomplish a lawful purpose or mission.
    (iii) Whether informational needs can be met without using personal 
identifiers.
    (iv) The disposition schedule for information.
    (v) The method of disposal.
    (vi) Cost of maintaining the information.
    (4) Complies with the publication requirements of DoD 5400.11-R, 
`Department of Defense Privacy Program' (see 32 CFR part 310). Submits 
final publication requirements to the appropriate DFAS Privacy Act 
Officer.
    (l) DFAS program manager(s). Reviews system alterations or 
amendments to evaluate for relevancy and necessity. Reviews will be 
conducted annually and reports prepared outlining the results and 
corrective actions taken to resolve problems. Reports will be forwarded 
to the appropriate Privacy Act Officer.
    (m) Federal government contractors. When a DFAS organizational 
element contracts to accomplish an agency function and performance of 
the contract requires the operation of a system of records or a portion 
thereof, DoD 5400.11-R, `Department of Defense Privacy Program' (see 32 
CFR part 310) and this part apply. For purposes of criminal penalties, 
the contractor and its employees shall be considered employees of DFAS 
during the performance of the contract.
    (1) Contracting involving operation of systems of records. 
Consistent with Federal Acquisition Regulation (FAR) \2\ and the DoD 
Supplement to the Federal Acquisition Regulation (DFAR) \3\, Part 224.1, 
contracts involving the operation of a system of records or portion 
thereof shall specifically identify the record system, the work to be 
performed and shall include in the solicitations and resulting contract 
such terms specifically prescribed by the FAR and DFAR.
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    \2\ Copies may be obtained at cost from the Superintendent of 
Documents, P.O. Box 37195, Pittsburgh, PA 15250-7954.
    \3\ See footnote 2 to Sec. 324.4(m)(1)
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    (2) Contracting. For contracting subject to this part, the Agency 
shall:
    (i) Informs prospective contractors of their responsibilities under 
the DFAS Privacy Act Program.
    (ii) Establishes an internal system for reviewing contractor 
performance to ensure compliance with the DFAS Privacy Act Program.
    (3) Exceptions. This rule does not apply to contractor records that 
are:
    (i) Established and maintained solely to assist the contractor in 
making internal contractor management decisions, such as records 
maintained by the contractor for use in managing the contract.
    (ii) Maintained as internal contractor employee records, even when 
used in

[[Page 991]]

conjunction with providing goods or services to the agency.
    (4) Contracting procedures. The Defense Acquisition Regulatory 
Council is responsible for developing the specific policies and 
procedures for soliciting, awarding, and administering contracts.
    (5) Disclosing records to contractors. Disclosing records to a 
contractor for use in performing a DFAS contract is considered a 
disclosure within DFAS. The contractor is considered the agent of DFAS 
when receiving and maintaining the records for the agency.



                      Subpart B_Systems of Records



Sec. 324.5  General information.

    (a) The provisions of DoD 5400.11-R, `Department of Defense Privacy 
Program' (see 32 CFR part 310) apply to all DFAS systems of records. 
DFAS Privacy Act Program Procedural Rules, DFAS Exemption Rules and 
System of Record Notices are the three types of documents relating to 
the Privacy Act Program that must be published in the Federal Register.
    (b) A system of records used to retrieve records by a name or some 
other personal identifier of an individual must be under DFAS control 
for consideration under this regulation. DFAS will maintain only those 
Systems of Records that have been described through notices published in 
the Federal Register.
    (1) First amendment guarantee. No records will be maintained that 
describe how individuals exercise their rights guaranteed by the First 
Amendment unless maintenance of the record is expressly authorized by 
Statute, the individual or for an authorized law enforcement purpose.
    (2) Conflicts. In case of conflict, the provisions of DoD 5400.11-R 
take precedence over this supplement or any DFAS directive or procedure 
concerning the collection, maintenance, use or disclosure of information 
from individual records.
    (3) Record system notices. Record system notices are published in 
the Federal Register as notices and are not subject to the rule making 
procedures. The public must be given 30 days to comment on any proposed 
routine uses prior to implementing the system of record.
    (4) Amendments. Amendments to system notices are submitted in the 
same manner as the original notices.



Sec. 324.6  Procedural rules.

    DFAS procedural rules (regulations having a substantial and direct 
impact on the public) must be published in the Federal Register first as 
a proposed rule to allow for public comment and then as a final rule. 
Procedural rules will be submitted through the appropriate DFAS Privacy 
Act Officer to the Department of Defense Privacy Office. Appendix B to 
this part provides the correct format. Guidance may be obtained from the 
DFAS-HQ and DFAS Center Records Managers on the preparation of 
procedural rules for publication.



Sec. 324.7  Exemption rules.

    (a) Submitting proposed exemption rules. Each proposed exemption 
rule submitted for publication in the Federal Register must contain: The 
agency identification and name of the record system for which an 
exemption will be established; The subsection(s) of the Privacy Act 
which grants the agency authority to claim an exemption for the system; 
The particular subsection(s) of the Privacy Act from which the system 
will be exempt; and the reasons why an exemption from the particular 
subsection identified in the preceding subparagraph is being claimed. No 
exemption to all provisions of the Privacy Act for any System of records 
will be granted. Only the Director, DFAS may make a determination that 
an exemption should be established for a system of record.
    (b) Submitting exemption rules for publication. Exemption rules must 
be published in the Federal Register first as proposed rules to allow 
for public comment, then as final rules. No system of records shall be 
exempt from any provision of the Privacy Act until the exemption rule 
has been published in the Federal Register as a final rule. The DFAS 
Privacy Act Officer will submit proposed exemption rules, in proper 
format, to the Defense Privacy Office,

[[Page 992]]

for review and submission to the Federal Register for publication. 
Amendments to exemption rules are submitted in the same manner as the 
original exemption rules.
    (c) Exemption for classified records. Any record in a system of 
records maintained by the Defense Finance and Accounting Service which 
falls within the provisions of 5 U.S.C. 552a(k)(1) may be exempt from 
the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), 
(e)(4)(G)-(e)(4)(I) and (f) to the extent that a record system contains 
any record properly classified under Executive Order 12589 and that the 
record is required to be kept classified in the interest of national 
defense or foreign policy. This specific exemption rule, claimed by the 
Defense Finance and Accounting Service under authority of 5 U.S.C. 
552a(k)(1), is applicable to all systems of records maintained, 
including those individually designated for an exemption herein as well 
as those not otherwise specifically designated for an exemption, which 
may contain isolated items of properly classified information
    (1) General exemptions. [Reserved]
    (2) Specific exemptions. [Reserved]



                 Subpart C_Individual Access to Records



Sec. 324.8  Right of access.

    The provisions of DoD 5400.11-R, `Department of Defense Privacy 
Program' (see 32 CFR part 310) apply to all DFAS personnel about whom 
records are maintained in systems of records. All information that can 
be released consistent with applicable laws and regulations should be 
made available to the subject of record.



Sec. 324.9  Notification of record's existence.

    All DFAS Privacy Act Officers shall establish procedures for 
notifying an individual, in response to a request, if the system of 
records contains a record pertaining to him/her.



Sec. 324.10  Individual requests for access.

    Individuals shall address requests for access to records to the 
appropriate Privacy Act Officer by mail or in person. Requests for 
access should be acknowledged within 10 working days after receipt and 
provided access within 30 working days. Every effort will be made to 
provide access rapidly; however, records cannot usually be made 
available for review on the day of request. Requests must provide 
information needed to locate and identify the record, such as individual 
identifiers required by a particular system, to include the requester's 
full name and social security number.



Sec. 324.11  Denials.

    Only a designated denial authority may deny access. The denial must 
be in writing.



Sec. 324.12  Granting individual access to records.

    (a) The individual should be granted access to the original record 
(or exact copy) without any changes or deletions. A record that has been 
amended is considered the original.
    (b) The DFAS component that maintains control of the records will 
provide an area where the records can be reviewed. The hours for review 
will be set by each DFAS location.
    (c) The custodian will require presentation of identification prior 
to providing access to records. Acceptable identification forms include 
military or government civilian identification cards, driver's license, 
or other similar photo identification documents.
    (d) Individuals may be accompanied by a person of their own choosing 
when reviewing the record; however, the custodian will not discuss the 
record in the presence of the third person without written 
authorization.
    (e) On request, copies of the record will be provided at a cost of 
$.15 per page. Fees will not be assessed if the cost is less that 
$30.00. Individuals requesting copies of their official personnel 
records are entitled to one free copy and then a charge will be assessed 
for additional copies.



Sec. 324.13  Access to medical and psychological records.

    Individual access to medical and psychological records should be 
provided, even if the individual is a minor, unless it is determined 
that access could have an adverse effect on the mental or

[[Page 993]]

physical health of the individual. In this instance, the individual will 
be asked to provide the name of a personal physician, and the record 
will be provided to that physician in accordance with guidance in 
Department of Defense 5400.11-R, `Department of Defense Privacy Program' 
(see 32 CFR part 310).



Sec. 324.14  Relationship between the Privacy Act and the Freedom of 
Information Act.

    Access requests that specifically state or reasonably imply that 
they are made under FOIA, are processed pursuant to the DFAS Freedom of 
Information Act Regulation. Access requests that specifically state or 
reasonably imply that they are made under the PA are processed pursuant 
to this regulation. Access requests that cite both the FOIA and the PA 
are processed under the Act that provides the greater degree of access. 
Individual access should not be denied to records otherwise releasable 
under the PA or the FOIA solely because the request does not cite the 
appropriate statute. The requester should be informed which Act was used 
in granting or denying access.

           Appendix A to Part 324--DFAS Reporting Requirements

    By February 1, of each calendar year, DFAS Centers and Financial 
Systems Organizations will provide the DFAS Headquarters Privacy Act 
Officer with the following information:
    1. Total Number of Requests for Access:
    a. Number granted in whole:
    b. Number granted in part:
    c. Number wholly denied:
    d. Number for which no record was found:
    2. Total Number of Requests to Amend Records in the System:
    a. Number granted in whole:
    b. Number granted in part:
    c. Number wholly denied:
    3. The results of reviews undertaken in response to paragraph 3a of 
Appendix I to OMB Circular A-130 \4\.
---------------------------------------------------------------------------

    \4\ Copies available from the Office of Personnel Management, 1900 
E. Street, Washington, DC 20415.
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            Appendix B to Part 324--System of Records Notice

    The following data captions are required for each system of records 
notice published in the Federal Register. An explanation for each 
caption is provided.
    1. System identifier. The system identifier must appear in all 
system notices. It is limited to 21 positions, including agency code, 
file number, symbols, punctuation, and spaces.
    2. Security classification. Self explanatory. (DoD does not publish 
this caption. However, each agency is responsible for maintaining the 
information.)
    3. System name. The system name must indicate the general nature of 
the system of records and, if possible, the general category of 
individuals to whom it pertains. Acronyms should be established 
parenthetically following the first use of the name (e.g., `Field Audit 
Office Management Information System (FMIS)'). Acronyms shall not be 
used unless preceded by such an explanation. The system name may not 
exceed 55 character positions, including punctuation and spaces.
    4. Security classification. This category is not published in the 
Federal Register but is required to be kept by the Headquarters Privacy 
Act Officer.
    5. System location. a. For a system maintained in a single location, 
provide the exact office name, organizational identity, routing symbol, 
and full mailing address. Do not use acronyms in the location address.
    b. For a geographically or organizationally decentralized system, 
describe each level of organization or element that maintains a portion 
of the system of records.
    c. For an automated data system with a central computer facility and 
input or output terminals at geographically separate locations, list 
each location by category.
    d. If multiple locations are identified by type of organization, the 
system location may indicate that official mailing addresses are 
published as an appendix to the agency's compilation of systems of 
records notices in the Federal Register. If no address directory is 
used, or if the addresses in the directory are incomplete, the address 
of each location where a portion of the record system is maintained must 
appear under the `system location' caption.
    e. Classified addresses shall not be listed but the fact that they 
are classified shall be indicated.
    f. The U.S. Postal Service two-letter state abbreviation and the 
nine-digit zip code shall be used for all domestic addresses.
    6. Categories of individuals covered by the system. Use clear, non 
technical terms which show the specific categories of individuals to 
whom records in the system pertain. Broad descriptions such as `all DFAS 
personnel' or `all employees' should be avoided unless the term actually 
reflects the category of individuals involved.
    7. Categories of records in the system. Use clear, non technical 
terms to describe the types of records maintained in the system.

[[Page 994]]

The description of documents should be limited to those actually 
retained in the system of records. Source documents used only to collect 
data and then destroyed should not be described.
    8. Authority for maintenance of the system. The system of records 
must be authorized by a Federal law or Executive Order of the President, 
and the specific provision must be cited. When citing federal laws, 
include the popular names (e.g., `5 U.S.C. 552a, The Privacy Act of 
1974') and for Executive Orders, the official titles (e.g., `Executive 
Order 9397, Numbering System for Federal Accounts Relating to Individual 
Persons').
    9. Purpose(s). The specific purpose(s) for which the system of 
records was created and maintained; that is, the uses of the records 
within DFAS and the rest of the Department of Defense should be listed.
    10. Routine uses of records maintained in the system, including 
categories of users and purposes of the uses. All disclosures of the 
records outside DoD, including the recipient of the disclosed 
information and the uses the recipient will make of it should be listed. 
If possible, the specific activity or element to which the record may be 
disclosed (e.g., `to the Department of Veterans Affairs, Office of 
Disability Benefits') should be listed. General statements such as `to 
other Federal Agencies as required' or `to any other appropriate Federal 
Agency' should not be used. The blanket routine uses, published at the 
beginning of the agency's compilation, applies to all system notices, 
unless the individual system notice states otherwise.
    11. Disclosure to consumer reporting agencies. This entry is 
optional for certain debt collection systems of records.
    12. Policies and practices for storing, retrieving, accessing, 
retaining, and disposing of records in the system. This section is 
divided into four parts.
    13. Storage. The method(s) used to store the information in the 
system (e.g., `automated, maintained in computers and computer output 
products' or `manual, maintained in paper files' or `hybrid, maintained 
in paper files and in computers') should be stated. Storage does not 
refer to the container or facility in which the records are kept.
    14. Retrievability. How records are retrieved from the system (e.g., 
`by name,' `by SSN,' or `by name and SSN') should be indicated.
    15. Safeguards. The categories of agency personnel who use the 
records and those responsible for protecting the records from 
unauthorized access should be stated. Generally the methods used to 
protect the records, such as safes, vaults, locked cabinets or rooms, 
guards, visitor registers, personnel screening, or computer `fail-safe' 
systems software should be identified. Safeguards should not be 
described in such detail as to compromise system security.
    16. Retention and disposal. Describe how long records are 
maintained. When appropriate, the length of time records are maintained 
by the agency in an active status, when they are transferred to a 
Federal Records Center, how long they are kept at the Federal Records 
Center, and when they are transferred to the National Archives or 
destroyed should be stated. If records eventually are destroyed, the 
method of destruction (e.g., shredding, burning, pulping, etc.) should 
be stated. If the agency rule is cited, the applicable disposition 
schedule shall also be identified.
    17. System manager(s) and address. The title (not the name) and 
address of the official or officials responsible for managing the system 
of records should be listed. If the title of the specific official is 
unknown, such as with a local system, the local director or office head 
as the system manager should be indicated. For geographically separated 
or organizationally decentralized activities with which individuals may 
correspond directly when exercising their rights, the position or title 
of each category of officials responsible for the system or portion 
thereof should be listed. Addresses that already are listed in the 
agency address directory or simply refer to the directory should not be 
included.
    18. Notification procedures. Notification procedures describe how an 
individual can determine if a record in the system pertains to him/her. 
If the record system has been exempted from the notification 
requirements of subsection (f)(l) or subsection (e)(4)(G) of the Privacy 
Act, it should be so stated. If the system has not been exempted, the 
notice must provide sufficient information to enable an individual to 
request notification of whether a record in the system pertains to him/
her. Merely referring to a DFAS regulation is not sufficient. This 
section should also include the title (not the name) and address of the 
official (usually the Program Manager) to whom the request must be 
directed; any specific information the individual must provide in order 
for DFAS to respond to the request (e.g., name, SSN, date of birth, 
etc.); and any description of proof of identity for verification 
purposes required for personal visits by the requester.
    19. Record access procedures. This section describes how an 
individual can review the record and obtain a copy of it. If the system 
has been exempted from access and publishing access procedures under 
subsections (d)(1) and (e)(4)(H), respectively, of the Privacy Act, it 
should be so indicated. If the system has not been exempted, describe 
the procedures an individual must follow in order to review the record 
and obtain a copy of it, including any requirements for identity 
verification. If appropriate, the individual may be referred to the 
system manager or another DFAS official who shall provide a detailed 
description of the access procedures.

[[Page 995]]

Any addresses already listed in the address directory should not be 
repeated.
    20. Contesting records procedures. This section describes how an 
individual may challenge the denial of access or the contents of a 
record that pertains to him or her. If the system of record has been 
exempted from allowing amendments to records or publishing amendment 
procedures under subsections (d)(1) and (e)(4)(H), respectively, of the 
Privacy Act, it should be so stated. If the system has not been 
exempted, this caption describes the procedures an individual must 
follow in order to challenge the content of a record pertaining to him/
her, or explain how he/she can obtain a copy of the procedures (e.g., by 
contacting the Program Manager or the appropriate DFAS Privacy Act 
Officer).
    21. Record source categories. If the system has been exempted from 
publishing record source categories under subsection (e)(4)(I) of the 
Privacy Act, it should be so stated. If the system has not been 
exempted, this caption must describe where DFAS obtained the information 
maintained in the system. Describing the record sources in general terms 
is sufficient; specific individuals, organizations, or institutions need 
not be identified.
    22. Exemptions claimed for the system. If no exemption has been 
established for the sys-tem, indicate `None.' If an exemption has been 
established, state under which provision of the Privacy Act it is 
established (e.g., `Portions of this system of records may be exempt 
under the provisions of 5 U.S.C. 552a(k)(2).')



PART 326_-NATIONAL RECONNAISSANCE OFFICE PRIVACY ACT PROGRAM--Table 
of Contents




Sec.
326.1 Purpose.
326.2 Application.
326.3 Definitions.
326.4 Policy.
326.5 Responsibilities.
326.6 Policies for processing requests for records.
326.7 Procedures for collection.
326.8 Procedures for requesting access.
326.9 Procedures for disclosure of requested records.
326.10 Procedures to appeal denial of access to requested record.
326.11 Special procedures for disclosure of medical and psychological 
          records.
326.12 Procedures to request amendment or correction of record.
326.13 Procedures to appeal denial of amendment.
326.14 Disclosure of record to person other than subject.
326.15 Fees.
326.16 Penalties.
326.17 Exemptions.

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

    Source: 65 FR 20372, Apr. 17, 2000, unless otherwise noted.



Sec. 326.1  Purpose.

    This part implements the basic policies and procedures outlined in 
the Privacy Act of 1974, as amended (5 U.S.C. 552a), and 32 CFR part 
310; and establishes the National Reconnaissance Office Privacy Program 
(NRO) by setting policies and procedures for the collection and 
disclosure of information maintained in records on individuals, the 
handling of requests for amendment or correction of such records, appeal 
and review of NRO decisions on these matters, and the application of 
exemptions.



Sec. 326.2  Application.

    Obligations under this part apply to all employees detailed, 
attached, or assigned to or authorized to act as agents of the National 
Reconnaissance Office. The provisions of this part shall be made 
applicable by contract or other legally binding action to government 
contractors whenever a contract is let for the operation of a system of 
records or a portion of a system of records.



Sec. 326.3  Definitions.

    Access. The review or copying of a record or its parts contained in 
a system of records by a requester.
    Agency. Any executive or military department, other establishment, 
or entity included in the definition of agency in 5 U.S.C. 522(f).
    Control. Ownership or authority of the NRO pursuant to federal 
statute or privilege to regulate official or public access to records.
    Disclosure. The authorized transfer of any personal information from 
a system of records by any means of communication (such as oral, 
written, electronic, mechanical, or actual review) to any person, 
private entity, or government agency other than the subject of the 
record, the subject's designated agent, or the subject's legal guardian.
    He, him, and himself. Generically used in this part to refer to both 
males and females.

[[Page 996]]

    Individual or requester. A living citizen of the U.S. or an alien 
lawfully admitted to the U.S. for permanent residence and to whom a 
record might pertain. The legal guardian or legally authorized agent of 
an individual has the same rights as the individual and may act on his 
behalf. No rights are vested in the representative of a dead person or 
in persons acting in an entrepreneurial (for example, sole 
proprietorship or partnership) capacity under this part.
    Interested party. Any official in the executive (including 
military), legislative, or judicial branches of government, U.S. or 
foreign, or U.S. Government contractor who, in the sole discretion of 
the NRO, has a subject matter or physical interest in the documents or 
information at issue.
    Maintain. To collect, use, store, disclose, retain, or disseminate 
when used in connection with records.
    Originator. The NRO employee or contractor who created the document 
at issue or his successor in office or any official who has been 
delegated release or declassification authority pursuant to law.
    Personal information. Information about any individual that is 
intimate or private to the individual, as distinguished from `corporate 
information' which is in the public domain and related solely to the 
individual's official functions or public life (i.e., employee's name, 
job title, work phone, grade/rank, job location).
    Privacy Act Coordinator. The NRO Information and Access Release 
Center Chief who serves as the NRO manager ofthe information review and 
release program instituted under the Privacy Act.
    Record. Any item, collection, or grouping of information about an 
individual that is maintained by the NRO, including, but not limited to, 
the individual's education, financial transactions, medical history, and 
criminal or employment history, and that contains the individual's name 
or identifying number (such as Social Security or employee number), 
symbol, or other identifying particular assigned to the individual, such 
as fingerprint, voice print, or photograph. Records include data about 
individuals which is stored in computers.
    Responsive record. Documents or records that the NRO has determined 
to be within the scope of a Privacy Act request.
    Routine use. The disclosure of a record outside the Department of 
Defense (DoD) for a use that is compatible with the purpose for which 
the information was collected and maintained by NRO. Routine use 
encompasses not only common or ordinary use, but also all the proper and 
necessary uses of the record even if such uses occur infrequently. All 
routine uses must be published in the Federal Register.
    System managers. Officials who have overall responsibility for a 
Privacy Act system of records.
    System notice. The official public notice published in the Federal 
Register of the existence and general content of the system of records.
    System of records. A group of any records under the control of the 
NRO from which information is retrieved by the name of an individual or 
by some identifying number, symbol, or other identifying particular 
assigned to that individual.
    Working days. Days when the NRO is operating and specifically 
excludes Saturdays, Sundays, and legal public holidays.



Sec. 326.4  Policy.

    (a) Records about individuals--
    (1) Collection. The NRO will safeguard the privacy of individuals 
identified in its records. Information about an individual will, to the 
greatest extent practicable, be collected directly from the individual, 
and personal information will be protected from unintentional or 
unauthorized disclosure by treating it as marked `For Official Use 
Only.' Access to personal information will be restricted to those 
employees whose official duties require it during the regular course of 
business.
    (i) Privacy Act Statement. When an individual is requested to 
furnish personal information about himself for inclusion in a system of 
records, a Privacy Act Statement is required to enable him to make an 
informed decision whether to provide the information requested. A 
Privacy Act Statement may

[[Page 997]]

appear, in order of preference, at the top or bottom of a form, on the 
reverse side of a form, or attached to the form as a tear-off sheet.
    (ii) Social Security Numbers (SSNs). It is unlawful for any 
governmental agency to deny an individual any right, benefit, or 
privilege provided by law because the individual refuses to provide his 
SSN. However, if a federal statute requires that the SSN be furnished or 
if the SSN is required to verify the identity of an individual in a 
system of records that was established and in use before January 1, 
1975, this restriction does not apply. When collecting the SSN, a 
`qualified' Privacy Act Statement must be provided even if the SSN will 
not be maintained in a system of records. The 'qualified' Privacy Act 
Statement shall inform the individual whether the disclosure is 
mandatory or voluntary, by what statutory or other authority such number 
is solicited, and what uses will be made of it.
    (2) Maintenance. The NRO will maintain in its records only such 
information about an individual which is accurate, relevant, timely, and 
necessary to accomplish a purpose which is required by statute or 
Executive Order. All records used by the NRO to make determinations 
about individuals will be maintained with such accuracy and completeness 
as is reasonably necessary to assure fairness to the individual.
    (3) Existence. The applicability of the Privacy Act depends on the 
existence of an identifiable record. The procedures described in NRO 
regulations do not require that a record be created or that an 
individual be given access to records that are not retrieved by name or 
other individual identifier. Nor do these procedures entitle an 
individual to have access to any information compiled in reasonable 
anticipation of a civil action or proceeding. NRO will maintain only 
those systems of records that have been described through notices 
published in the Federal Register. A system of records from which 
records may be retrieved by a name or some other personal identifier 
must be under NRO control for consideration under this part.
    (4) Disposal. The NRO will archive, dispose of, or destroy records 
containing personal data in a manner to prevent specific records from 
being readily identified or inadvertently compromised.
    (b) Evaluation of records. Statutory authority to establish and 
maintain a system of records does not grant unlimited authority to 
collect and maintain all information which may be useful or convenient. 
Directorates and offices maintaining records will evaluate each category 
of information in records systems for necessity and relevance prior to 
republication of all system notices in the Federal Register and during 
the design phase or change of a system of records. The following will be 
considered in the evaluation:
    (1) Relationship of each item of information to the statutory 
purpose for which the system is maintained;
    (2) Specific adverse consequences of not collecting each category of 
information; and
    (3) Techniques for purging parts of the records.
    (c) Disclosure of records. The NRO will provide the fullest access 
practicable by individuals to NRO records concerning them. Release of 
personal information to such individuals is not considered public 
release of information. Upon receipt of a written request, the NRO will 
release to individuals those records that are releasable and applicable 
to the individual making the request. Generally, information, other than 
that exempted by law and this part, will be provided to the individual. 
NRO personnel will comply with the Privacy Act of 1974, as amended, the 
DoD Privacy Act Program (32 CFR part 310), and the NRO Privacy Act 
Program. No NRO records shall be disclosed by any means of communication 
to any person or to any agency except pursuant to a written request by 
or the prior written consent of the individual to whom it pertains, 
unless disclosure of the record will be:
    (1) To those employees of the NRO who have an official need for the 
record in the performance of their duties.
    (2) Required to be disclosed to a member of the public under the 
Freedom of Information Act, as amended.

[[Page 998]]

    (3) For a routine use as defined in the Privacy Act.
    (4) To the Census Bureau for the purpose of conducting a census or 
survey or related activity authorized by law.
    (5) To a recipient who has provided the NRO with advance, adequate 
written assurance that the record will be used solely as statistical 
research and that the record is to be transferred in a form in which the 
individual is not identifiable.
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U. S. Government.
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the U.S. for a civil or 
criminal law enforcement activity if such activity is authorized by law 
and if the head of the agency or governmental entity has made a written 
request to the NRO specifying the particular portion of the record and 
the law enforcement activity for which the record is sought (blanket 
requests will not be accepted); a record may also be disclosed to a law 
enforcement agency at the initiative of the NRO pursuant to the blanket 
routine use for law enforcement when criminal conduct is indicated in 
the record.
    (8) To a person showing compelling circumstances affecting the 
health or safety of an individual if, upon such disclosure, notification 
is sent to the last known address of the individual to whom the record 
pertains (emergency medical information may be released by telephone).
    (9) To Congress or any committee, joint committee, or subcommittee 
of Congress with respect to a matter under its jurisdiction. This 
provision does not authorize the disclosure of a record to members of 
Congress acting in their individual capacities or on behalf of their 
constituents making third party requests. However, such releases may be 
made pursuant to the blanket routine use for Congressional inquiries 
when a constituent has sought the assistance of his Congressman forthe 
constituent's individual record(s).
    (10) To the Comptroller General or any of his authorized 
representatives in the course of the performance of the duties of the 
General Accounting Office.
    (11) Pursuant to an order of a court of competent jurisdiction. When 
the record is disclosed under compulsory legal process and when the 
issuance of that order or subpoena is made public by the court which 
issued it, the NRO will make reasonable efforts to notify the individual 
to whom the record pertains by mail at the most recent address contained 
in NRO records.
    (12) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(f).
    (d) Allocation of resources. NRO components shall exercise due 
diligence in their responsibilities under the Privacy Act and must 
devote a reasonable level of personnel to respond to requests on a 
`first-in, first-out' basis. In allocating Privacy Act resources, the 
component shall consider its imposed business demands, the totality of 
resources available to it, the information review and release demands 
imposed by Congress and other governmental authorities, and the rights 
of the public under various disclosure laws. The PA Coordinator will 
establish priorities for cases consistent with established law to ensure 
that smaller as well as larger `project' cases receive equitable 
attention.
    (e) Written permission for disclosure. Disclosures made under 
circumstances not delineated in this part shall be made only if the 
written permission of the individual involved has been obtained. Written 
permission shall be recorded on or appended to the document transmitting 
the personal information to the other agency, in which case no separate 
accounting of the disclosure need be made. Written permission is 
required in each case; that is, once obtained, written permission for 
one case does not constitute blanket permission for other disclosures.
    (f) Coordination with other government agencies. Records systems of 
the NRO may contain records originated by other agencies that may have 
claimed exemptions for them under the Privacy Act. Where appropriate, 
coordination will be effected with the originating agency. The NRO will 
comply with the instructions issued by another agency responsible for a 
system of records

[[Page 999]]

(e.g., Office of Personnel Management) in granting access to such 
records. Records containing information or interests of another 
government agency will not be released until coordination with the other 
agency involved. A request for information pertaining to the individual 
in an NRO record system received from another federal agency will be 
coordinated with the originating agency.
    (g) Accounting for disclosure. Except for disclosures made under 
paragraphs (c)(1) and (c)(2) of this section, an accurate account of the 
disclosures shall be kept by the record holder in consultation with the 
Privacy Act Coordinator (PA Coordinator). There need not be a notation 
on a single document of every disclosure of a particular record. The 
record holder should be able to construct from its system of records the 
accounting information:
    (1) When required by the individual to whom the record pertains, or
    (2) When necessary to inform previous recipients of any amended 
records. The accounting shall be retained for at least five years or for 
the life of the record, whichever is longer, to be available for review 
by the subject of the record at his request except for disclosures made 
under paragraph (c)(7) of this section.
    (h) Application of rules. Any request for access, amendment, 
correction, etc., of personal record information in a system of records 
by an individual to whom such information pertains will be governed by 
the Privacy Act of 1974, as amended, DoD regulatory authority, and this 
part, exclusively. Any denial or exemption of all or part of a record 
from access, disclosure, amendment, correction, etc., will be processed 
under DoD regulatory authority and this part, unless court order or 
other competent authority directs otherwise.
    (i) First Amendment rights. No NRO official or component may 
maintain any information pertaining to the exercise by an individual of 
his rights under the First Amendment without the permission of that 
individual unless such collection is specifically authorized by statute 
or pertains to an authorized law enforcement activity.
    (j) Non-system information on individuals. The following information 
is not considered part of personal records systems reportable under this 
part and may be maintained by NRO for ready identification, contact, and 
property control purposes only, provided it is not maintained in a 
system of records. If at any time the information described in this 
paragraph is being maintained in a system of records, the information is 
subject to the Privacy Act.
    (1) Identification information at doorways, building directories, 
desks, lockers, name tags, etc.
    (2) Geographical or agency contact cards.
    (3) Property receipts and control logs for building passes, 
credentials, vehicles, etc.
    (4) Personal working notes of employees that are merely an extension 
of the author's memory, if maintained properly, do not come under the 
Privacy Act. Personal notes are not considered official NRO records if 
they meet the following requirements:
    (i) Keeping or discarding notes must be at the sole discretion of 
the author. Any requirement by supervising authority, whether by oral or 
written directive, regulation, policy, or memo to maintain such notes, 
likely would cause the notes to become official agency records.
    (ii) Such notes must be restricted to the author's personal use as 
memory aids, and only the author may have access to them. Passing them 
to a successor or showing them to other personnel (including supporting 
staff such as secretaries) would likely cause them to become agency 
records.
    (5) Rosters. The NRO has no restriction against rosters that contain 
only corporate information such as name, work telephone number, and 
position. Good recordkeeping practices dictate that only rosters that 
are relevant and necessary to the NRO's operations may be maintained, 
and therefore convenience rosters, which by definition do not satisfy 
the test, may not be maintained.



Sec. 326.5  Responsibilities.

    (a) The Director, NRO (DNRO):
    (1) Supervises the execution of the Privacy Act and this part within 
the NRO.

[[Page 1000]]

    (2) Appoints:
    (i) The Chief, Information Access and Release Center as the NRO 
Privacy Act Coordinator.
    (ii) The Director of Security, the Director of Policy, and the NRO 
General Counsel as the NRO Appeals Panel; and
    (iii) The Chief of Staff as the Senior Official for Privacy Policy 
and the Privacy Act Appeal Authority.
    (b) The Privacy Act Coordinator, NRO:
    (1) Establishes, issues, and updates policy for the NRO Privacy Act 
Program, monitors compliance, and serves as the principal NRO point of 
contact on all Privacy Act matters.
    (2) Receives, processes, and responds to all PrivacyAct requests 
received by the NRO, including:
    (i) Granting, granting in part, or denying an initial Privacy Act 
request for access or amendment to a record, and notifying a requester 
of such actions taken in regard to that request.
    (ii) Granting a requester access to all or part ofa record under 
dispute when, after a review, a decision is made in favor of a 
requester.
    (iii) Directing the appropriate NRO component to amend a record and 
advising other record holders to amend a record when a decision is made 
in favor of a requester.
    (iv) Notifying a requester, if a request is denied, of the reasons 
for denial and the procedures for appeal to the Privacy Act Appeal 
Authority.
    (v) Notifying a requester of his right to file a concise statement 
of his reasons for disagreement with the NRO's refusal to amend a 
record.
    (vi) Directing that a requester's statement of reasons for the 
request to amend, his concise statement of disagreement with the NRO's 
refusal to amend a record, and the NRO's letter of denial be included in 
the file containing the disputed record.
    (vii) Referring all appeals to the Privacy Act Appeals Panel and 
Appeal Authority.
    (viii) Notifying a requester of any required fees and delivering 
such collected fees to the Comptroller.
    (ix) Obtaining supplemental information from the requester when 
required.
    (3) Serves as the NRO point of contact with the Defense Privacy 
Office.
    (4) Reviews NRO use of records, and at least 40 calendar days prior 
to establishing a new agency system of records, ensures that new or 
amended notices are prepared and published in the Federal Register 
consistent with the requirements of 32 CFR part 310;
    (5) Coordinates with forms managers to ensure that a Privacy Act 
Statement is on all forms or in all other methods used to collect 
personal information for inclusion in any NRO records system;
    (6) Prepares the NRO Privacy Act report for submission to the DoD 
Privacy Office and to other authorities, as required by 32 CFR part 310.
    (7) Reviews all procedures, including forms, which require an 
individual to furnish information for conformity with the Privacy Act.
    (8) Retains the accounting of disclosures for at least five years or 
for the life of the record, whichever is longer, to be available for 
review by the subject of the record at his request except for 
disclosures made under paragraph (c)(7) of Sec. 326.4; and
    (9) Develops and oversees Privacy Act Program training for NRO 
personnel.
    (c) The Privacy Act Appeals Panel, NRO:
    (1) Meets and reviews all denials appealed by means of the NRO 
internal appeals process; and
    (2) Recommends a finding to the Privacy Act Appeal Authority by a 
majority vote of those present at the meeting and based on the written 
record and the panel's deliberations.
    (d) The Privacy Act Appeal Authority, NRO:
    (1) Determines all NRO Privacy Act appeals.
    (2) Reports the determination to the PA Coordinator.
    (3) Signs the final appeal letter to the requester.
    (e) General Counsel, NRO:
    (1) Ensures uniformity in NRO legal positions concerning the Privacy 
Act and reviews proposed responses to Privacy Act requests to ensure 
legal sufficiency, as appropriate.

[[Page 1001]]

    (2) Consults with DoD General Counsel on final denials that may be 
inconsistent with other final decisions within DoD; raises new legal 
issues of potential significance to other government agencies.
    (3) Provides advice and assistance to the DNRO, the PA Coordinator, 
and component Directors, as required, in the discharge of their 
responsibilities pertaining to the Privacy Act.
    (4) Advises on all legal matters concerning the Privacy Act, 
including legal decisions, rulings by the Department of Justice, and 
actions by DoD and other commissions on the Privacy Act.
    (5) Approves all Privacy Act Statements prior to their reproduction 
and distribution.
    (6) Acts as the NRO focal point for Privacy Act litigation with the 
Department of Justice.
    (7) Provides a status report to the Defense Privacy Office, 
consistent with the requirements of 32 CFR part 310, whenever an 
individual brings suit under subsection (g) of the Privacy Act against 
NRO.
    (f) Chief Information Officer (CIO), NRO:
    (1) Ensures that NRO systems of records databases have procedures to 
protect the confidentiality of personal records maintained or processed 
by means of automatic data processing (ADP) systems and ensures that ADP 
systems contain appropriate safeguards for the privacy of personnel.
    (2) Coordinates with the PA Coordinator before developing or 
modifying CIO-sponsored ADP supported files subject to the provisions of 
this part.
    (g) Directorate and Office Managers, NRO:
    (1) Ensure that records contained in their directorate or office 
systems of records are disclosed only to those NRO officials or 
employees who require the records for official purposes.
    (2) Review their own directorate and office systems of records to 
ensure and certify that no systems of records other than those listed in 
the Federal Register System Notices are maintained; notify the CIO and 
the PA Coordinator promptly whenever there are changes to processing 
equipment, hardware, software, or database that may require an amended 
system notice.
    (3) Maintain only such information about an individual as is 
relevant and necessary to accomplish a purpose which is required by 
statute or Executive Order and identify the specific provision of law or 
Executive Order which provides authority for the maintenance of 
information in each system of records.
    (h) System Managers, NRO:
    (1) Ensure that adequate safeguards have been established and are 
enforced to prevent the misuse, unauthorized disclosure, alteration, or 
destruction of personal information contained in system records.
    (2) Ensure that all personnel who have access tothe system of 
records, or are engaged in developing or supervising procedures for 
handling records, are aware of their responsibilities established by the 
NRO Privacy Act Program.
    (3) Evaluate each system of records during the planning stage and at 
regular intervals. The following factors should be considered:
    (i) Relationship of data to be collected and retained to the 
purposes for which the system is maintained (all information must be 
relevant and necessary to the purpose for which it is collected).
    (ii) The specific impact on the purpose or mission if categories of 
information are not collected (all data fields must be necessary to 
accomplish a lawful purpose or mission).
    (iii) Whether informational needs can be met without using personal 
identifiers.
    (iv) The cost of maintaining and disposing of records within the 
systems of records and the length of time each item of information must 
be retained according to the NRO Records Control Schedule as approved by 
the National Archives and Records Administration.
    (4) Review system alterations or amendments to evaluate for 
relevancy and necessity.
    (i) Forms and Information Managers. All NRO individualsresponsible 
for forms or methods used to collect personal information from 
individuals will:

[[Page 1002]]

    (1) Ensure that Privacy Act Statements are on appropriate forms and 
that new forms have the required Privacy Act Statement.
    (2) Determine, with General Counsel's concurrence, which forms 
require Privacy Act Statements and will prepare such statements.
    (3) Assist the initiators in determining whether a form, format, 
questionnaire, or report requires a Privacy Act Statement. Privacy Act 
Statements must be complete, specific, written in plain English, and 
approved by the Office of General Counsel.
    (j) Employees, NRO:
    (1) Will be familiar with the provisions of this part regarding the 
maintenance of systems of records, authorized access, and authorized 
disclosure;
    (2) Will collect, maintain, use, and/or disseminate records 
containing identifiable personal information only for lawful purposes; 
will keep the information current, complete, relevant, and accurate for 
its intended use; and will safeguard the records in a system and keep 
them the minimum time required;
    (3) Will not disclose any personal information contained in any 
system of records, except as authorized by the Privacy Act and this 
part;
    (4) Will maintain no system of records concerning individuals except 
those authorized, and will maintain no other information concerning 
individuals except as necessary for the conduct of business at the NRO;
    (5) Will provide individuals a Privacy Act Statement when asking 
them to provide information about themselves. The Privacy Act Statement 
will include the authority under which the information is being 
requested, whether disclosure of the information is mandatory or 
voluntary, the purposes for which it is being requested, the uses to 
which it will be put, and the consequences of not providing the 
information;
    (6) May not deny an individual any right or privilege provided by 
law because of that individual's failure to disclose his SSN unless such 
information is required by federal statute or disclosure was required by 
statute or regulations adopted prior to January 1, 1975. If disclosure 
of the SSN is not required, NRO directorates and offices are not 
precluded from requesting it from individuals; however, the Privacy Act 
Statement must make clear that the disclosure of the SSN is voluntary 
and, if the individual refuses to disclose it, must be prepared to 
identify him by alternate means.
    (7) Will collect personal information directly from the subject 
whenever possible; employees may collect information from third parties 
when that information must be verified, opinions or evaluations are 
required, the subject cannot be contacted, or the subject requests it.
    (8) Will keep paper and electronic records which contain personal 
information and are retrieved by name or personal identifier only in 
approved systems published in the Federal Register.
    (9) Will amend and correct records when directed by the PA 
Coordinator.
    (10) Will report to the PA Coordinator any disclosures of personal 
information from a system of records, or the maintenance of any system 
of records, not authorized by this part.
    (11) Will participate in specialized Privacy Act training should 
their duties require dealing with special investigators, the news media, 
or the public.

[65 FR 20372, Apr. 17, 2000, as amended at 66 FR 41783, Aug. 9, 2001]



Sec. 326.6  Policies for processing requests for records.

    (a) An individual's written request for access to records about 
himself which does not specify the Act under which the request is made 
will be processed under both the Freedom of Information Act (FOIA) and 
the Privacy Act and the applicable regulations. Such requests will be 
processed under both Acts regardless of whether the requester cites one 
Act, both, or neither in the request in order to ensure the maximum 
possible disclosure to the requester. Individuals may not be denied 
access to a record pertaining to themselves merely because those records 
are exempt from disclosure under the FOIA.
    (b) A Privacy Act request that neither specifies the system(s) of 
records to be searched nor identifies the substantive nature of the 
information sought will be processed by searching

[[Page 1003]]

the systems of records categorized as Environmental Health, Safety and 
Fitness, FOIA/Privacy, General, and Security.
    (c) A Privacy Act request that does not designate the system(s) of 
records to be searched but does identify the substantive nature of the 
information sought will be processed by searching those systems of 
records likely to have information similar to that sought by the 
requester.
    (d) The NRO will not disclose any record to any person or government 
agency except by written request or prior written consent of the subject 
of the record unless the disclosure is required by law or is within the 
exceptions of the Privacy Act. If a requester authorizes another 
individual to obtain the requested records on his behalf, the requester 
shall provide a written, signed, notarized statement appointing that 
individual as his representative and certifying that the individual 
appointed may have access to the requester's records and that such 
access shall not constitute an invasion of his privacy nor a violation 
of his rights under the Privacy Act. In lieu of a notarized statement, 
the NRO will accept a declaration in accordance with 28 U.S.C. 1746.
    (e) Upon receipt of a written request, the Privacy Act Coordinator 
(PA Coordinator) will release to the requester those records which are 
releasable and applicable to the individual making the request. Records 
about individuals include data stored electronically or in electronic 
media. Documentary material qualifies as a record if the record is 
maintained in a system of records.
    (f) Initial availability, potential for release, and cost 
determination will usually be made within ten working days of the date 
on which a written request for any identifiable record is received by 
the NRO (and acknowledgement is sent to the individual). If additional 
time is needed due to unusual circumstances, a written notification of 
the delay will be forwarded to the requester within the ten working day 
period. This notification will briefly explain the circumstances for the 
delay and indicate the anticipated date for a substantive response.
    (g) All requests will be handled in the order received on a `first-
in, first-out' basis. Requests will be considered for expedited 
processing only if the NRO determines that there is a genuine health, 
humanitarian, or due process reason involving possible deprivation of 
life or liberty which creates an exceptional and urgent need, that there 
is no alternative forum for the records sought, and that substantive 
records relevantto the stated needs may exist and be releasable.
    (h) Records provided or originated by another agency or containing 
other agency information will not be released prior to coordination with 
the other agency involved.
    (i) Requesting or obtaining access to records under false pretenses 
is a violation of the Privacy Act and is subject to criminal penalties.



Sec. 326.7  Procedures for collection.

    (a) To the maximum extent practical, personal information about an 
individual will be obtained directly from that individual.
    (b) Whenever an individual is asked to provide personal information, 
including Social Security Number (SSN) or a personal identifier, about 
himself, a Privacy Act Statement will be furnished that will advise him 
of the authority (whether by statute or by Executive Order) under which 
the information is requested, whether disclosure of the information is 
voluntaryor mandatory, the purposes for which it is requested, the uses 
to which it will be put, and the consequences of not providing the 
information.
    (c) When asking third parties to provide information about other 
individuals, NRO employees will advise them:
    (1) Of the purpose of the request, and
    (2) That their identities and the information they are furnishing 
may be released to the individual unless they expressly request 
confidentiality. All persons interviewed must be informed of their 
rights and offered confidentiality.

[[Page 1004]]



Sec. 326.8  Procedures for requesting access.

    (a) Request in writing. An individual seeking notification of 
whether a system of records contains a record pertaining to him, or an 
individual seeking access to records pertaining to him which are 
available under the Privacy Act, shall address the request in writing to 
the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee 
Road, Chantilly, VA 20151-1715. The request should contain at least the 
following information:
    (1) Identification. Reasonable identification, including first name, 
middle name or initial, surname, any aliases or nicknames, Social 
Security Number, and return address of the individual concerned, 
accompanied by a signed notarized statement that such information is 
true under penalty of perjury and swearing to or affirming his identity. 
An unsworn declaration, under 28 U.S.C. 1746, also is acceptable. In the 
case of a request for records of a sensitive nature if the PA 
Coordinator determines that this information does not sufficiently 
identify the individual, the PA Coordinator may requests additional 
identification or clarification of information submitted by the 
individual.
    (i) In addition, an alien lawfully admitted for permanent residence 
shall provide his Alien Registration Number and the date that status was 
acquired.
    (ii) The parent or guardian of a minor or of a person judicially 
determined to be incompetent, or an attorney retained to represent an 
individual, in addition to establishing the identity of the minor or 
person represented as required in this part, shall provide evidence of 
his own identity as required in this part and evidence of such 
parentage, guardianship, or representation by submitting a certified 
copyof the minor's birth certificate, the court order establishing such 
guardianship, or the representation agreement which establishes the 
relationship.
    (2) Cost. A statement of willingness to pay reproduction costs. 
Processing of requests and administrative appeals from individuals who 
owe outstanding fees will be held in abeyance until such fees are paid.
    (3) Record sought. A description, to the best of his ability, of the 
nature of the record sought and the system in which it is thought to be 
included. In lieu of this, a requester may simply describe why and under 
what circumstances he believes that the NRO maintains responsive 
records; the NRO will undertake the appropriate searches.
    (b) Access on behalf of the individual. If the requester wishes 
another person to obtain the records on his behalf, the requester will 
furnish a notarized statement or unsworn declaration appointing that 
person as his representative, authorizing him access to the record, and 
affirming that access will not constitute an invasion of the requester's 
privacy or a violation of his rights under the Privacy Act. The NRO 
requires a written statement to authorize discussion of the individual's 
record in the presence of a third person.



Sec. 326.9  Procedures for disclosure of requested information.

    (a) The PA Coordinator shall acknowledge receipt of the request in 
writing within ten working days.
    (b) Upon receipt of a request, the PA Coordinator shall refer the 
request to those components most likely to possess responsive records. 
The components shall search all relevant record systems within their 
cognizance and shall:
    (1) Determine whether a responsive record exists in a system of 
records.
    (2) Determine whether access must be denied and on what legal basis. 
An individual may be denied access to his records under the Privacy Act 
only if an exemption has been properly claimed for all or part of the 
records or information requested; or if the information was compiled in 
reasonable anticipation of a civil action or proceeding.
    (3) Approve the disclosure of records for which they are the 
originator.
    (4) Forward to the PA Coordinator all records approved for release 
or necessary for coordination with or referral to another originator or 
interested party as well as notification of the specific determination 
for any denial.
    (c) When all records have been collected, the PA Coordinator shall 
notify

[[Page 1005]]

the individual of the determination and shall provide an exact copy of 
records deemed to be accessible if a copy has been requested.
    (d) When an original record is illegible, incomplete, or partially 
exempt from release, the PA Coordinator shall explain in terms 
understood by the requester the portions of a record that are unclear.
    (e) If access to requested records, or any portion thereof, is 
denied, the PA Coordinator shall inform the requester in writing of the 
specific reason(s) for denial, including the specific citation to 
appropriate sections of the Privacy Act or other statutes, this and 
other NRO regulations, or the Code of Federal Regulations authorizing 
denial, and the right to appeal this determination through the NRO 
appeal procedure within 60 calendar days. The denial shall include the 
date of denial, the name and title/position of the denial authority, and 
the address of the NRO Appeal Authority. Access may be refused when the 
records are exempt by the Privacy Act. Usually an individual will not be 
denied access to the entire record, but only to those portions to which 
the denial of access furthers the purpose for which an exemption was 
claimed.



Sec. 326.10  Procedures to appeal denial of access to requested record.

    (a) Any individual whose request for access is denied may request a 
review of the initial decision within 60 calendar days of the date of 
the notification of denial of access by appealing within the NRO 
internal appeals process. If a requester elects to request NRO review, 
the request shall be sent in writing to the Privacy Act Coordinator, 
National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-
1715, briefly identifying the particular record which is the subject of 
the request and setting forth the reasons for the appeal. The request 
should enclose a copy of the denial correspondence. The following 
procedures apply to appeals within the NRO:
    (1) The PA Coordinator, after acknowledging receipt of the appeal, 
shall promptly refer the appeal to the record-holding components, 
informing them of the date of receipt of the appeal and requesting that 
the component head or his designee review the appeal.
    (2) The record-holding components shall review the initial denial of 
access to the requested records and shall inform the PA Coordinator of 
their review determination.
    (3) The PA Coordinator shall consolidate the component responses, 
review the record, direct such additional inquiry or investigation as is 
deemed necessary to make a fair and equitable determination, and make a 
recommendation to the NRO Appeals Panel, which makes a recommendation to 
the Appeal Authority.
    (4) The Appeal Authority shall notify the PA Coordinator of the 
result of the determination on the appeal, who shall notify the 
individual of the determination in writing.
    (5) If the determination reverses the initial denial, the PA 
Coordinator shall provide a copy of the records requested. If the 
determination upholds the initial denial, the PA Coordinator shall 
inform the requester of his right to judicial review in U.S. District 
Court and shall include the exact reasons for denial with specific 
citations to the provisions of the Privacy Act, other statutes, NRO 
regulations, or the Code of Federal Regulations upon which the 
determination is based.
    (b) The Appeal Authority shall act on the appeal or provide a notice 
of extension within 30 working days.



Sec. 326.11  Special procedures for disclosure of medical and 
psychological records.

    When requested medical and psychological records are not exempt from 
disclosure, the PA Coordinator may determine which non-exempt medical or 
psychological records should not be sent directly to the requester 
because of possible harm or adverse impact to the requester or another 
person. In that event, the information may be disclosed to a physician 
named by the requester. The appointment of the physician will be in the 
same notarized form or declaration as described in Sec. 326.8 and will 
certify that the physician is licensed to practice in the appropriate 
specialty (medicine, psychology, or psychiatry). Upon designation,

[[Page 1006]]

verification of the physician's identity, and agreement by the physician 
to review the documents with the requester to explain the meaning of the 
documents and to offer counseling designed to mitigate any adverse 
reaction, the NRO will forward such records to the designated physician. 
If the requester refuses or fails to designate a physician, the record 
shall not be provided. Under such circumstances refusal of access is not 
considered a denial for Privacy Act reporting purposes. However, if the 
designated physician declines to furnish the records to the individual, 
the PA Coordinator will take action to ensure that the records are 
provided to the individual.



Sec. 326.12  Procedures to request amendment or correction of record.

    (a) An individual may request amendment or correction of a record 
pertaining to him/her by addressing such request in writing, to the 
Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, 
Chantilly, VA 20151-1715. Incomplete or inaccurate requests will not be 
rejected categorically; instead, the requester will be asked to clarify 
the request as needed. A request will not be rejected or require 
resubmission unless additional information is essential to process the 
request. Usually, amendments under this part are limited to correcting 
factual errors and not matters of official judgment, such as promotion 
ratings and job performance appraisals. The requester must adequately 
support his claim and must identify:
    (1) The particular record he wishes to amend or correct, specifying 
the number of pages and documents, the titles of the documents, form 
numbers if any, dates on documents, and individuals who signed them. Any 
reasonable description of the documents is acceptable. A clear and 
specific description of passages, pages, or documents to be amended will 
expedite processing the request.
    (2) The desired amending language. The requester should specify the 
type of amendment, including complete removal of data, passages, or 
documents from record or correction of information to make it accurate, 
more timely, complete, or relevant.
    (3) A justification for such amendment or correctionto include any 
documentary evidence supporting the request.
    (b) Individuals will be required to provide verification of identity 
as in Sec. 326.8. to ensure that the requester is seeking to amend 
records pertaining to himself and not, inadvertently or intentionally, 
the records of another individual.
    (c) Minor factual errors in an individual's personal record may be 
corrected routinely upon request without resort to the Privacy Act or 
the provisions of this part, if the requester and the record holder 
agree to that procedure and the requester receives a copy of the 
corrected record whenever possible. A written request is not required 
when individuals indicate amendments during routine annual review and 
updating of records programs conducted by the NRO for civilian personnel 
and the Services for military personnel. Requests for deletion, removal 
of records, and amendment of substantive factual information will be 
processed according to the Privacy Act and the provisions of this part.
    (d) The PA Coordinator shall acknowledge receipt of the request in 
writing within ten working days. No separate acknowledgement of receipt 
is necessary if the request can be either approved or denied and the 
requester advised within the ten-day period. For written requests 
presented in person, written acknowledgement may be provided at the time 
the request is presented.
    (e) The PA Coordinator shall refer such request to the record-holder 
components, shall advise those components of the date of receipt, and 
shall request that those components make a prompt determination on such 
request.
    (f) The record-holder components shall promptly:
    (1) Make any amendment or correction to any portion of the record 
which the individual believes is not accurate, relevant, timely, or 
complete and notify the PA Coordinator and all holders and recipients of 
such records and their amendments that the correction was made; or

[[Page 1007]]

    (2) Set forth the reasons for the refusal, if they determine that 
the requested amendment or correction will not be made or if they 
decline to make the requested amendment but instead augment the official 
record, and so inform the PA Coordinator.
    (g) The Privacy Act Coordinator shall:
    (1) Inform the requester of the agency's determination to make the 
amendment or correction as requested and notify all prior recipients of 
the change to the disputed records for which an accounting had been 
required; or
    (2) Inform the requester of the specific reasons and legal 
authorities for the agency's refusal and the procedures established for 
him to request a review of that refusal.
    (h) The amendment procedure is not intended to replace other 
existing procedures such as those for registering grievances or 
appealing performance appraisal reports. In such cases the requester 
will be apprised of the appropriate procedures for such actions.
    (i) This part does not permit the alteration of evidence presented 
to courts, boards, or other official proceedings.



Sec. 326.13  Procedures to appeal denial of amendment.

    (a) Any individual whose request for amendment or correction is 
denied may request a review of the initial decision within 60 calendar 
days of the date of the notification of denial by appealing within the 
NRO internal appeals process. If a requester elects to request NRO 
review, the request shall be sent in writing to the Privacy Act 
Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, 
VA 20151-1715, briefly identifying the particular record which is the 
subject of the request and setting forth the reasons for the appeal. The 
request should enclose a copy of the denial correspondence. The 
following procedures apply to appeals within the NRO:
    (1) The PA Coordinator, after acknowledging receipt of the appeal, 
shall promptly refer the appeal to the record-holding components, 
informing them of the date of receipt of the appeal and requesting that 
the component head or his designee review the appeal.
    (2) The record-holding components shall review the initial denial of 
access to the requested records and shall inform the PA Coordinator of 
their review determination.
    (3) The PA Coordinator shall act as secretary of the Appeals Panel. 
He shall:
    (i) Consolidate the component responses and reasons for the initial 
denial.
    (ii) Provide all supporting materials both furnished to and by the 
requester and the record-holding component.
    (iii) Review the record.
    (iv) Direct such additional inquiry or investigation as is deemed 
necessary to make a fair and equitable determination.
    (v) Prepare the record and schedule the appeal for the next meeting 
of the Appeals Panel. The Appeals Panel shall recommend a finding to the 
Appeal Authority by a majority vote of those present at the meeting 
based on the written record and the Panel's deliberations. No personal 
appearances shall be permitted without the express permission of the 
Panel.
    (4) The Appeal Authority shall notify the PA Coordinator of the 
result of the determination on the appeal who shall notify the 
individual of the determination in writing.
    (5) The Appeal Authority will notify the PA Coordinator if the 
determination is that the record should be amended. The PA Coordinator 
will promptly advise the requester and the office holding the record to 
amend the record and to notify all prior recipients of the records for 
which an accounting was required of the change.
    (6) If the determination upholds the initial denial, in whole or in 
part, the PA Coordinator shall inform the requester:
    (i) Of the denial and the reason.
    (ii) Of his right to file in NRO records within 60 calendar days a 
concise statement of the reasons for disputing the information contained 
in the record. If the requester elects to file a statement of 
disagreement, the PA Coordinator will be responsible for clearly noting 
any portion of the record that is disputed and for appending into the 
file

[[Page 1008]]

the requester's statement as well as a copy of the NRO's letter to the 
requester denying the disputed information, if appropriate. The 
requester's statement and the NRO denial letter will be made available 
to anyone to whom the record is subsequently disclosed, and prior 
recipients of the disputed record will be provided a copy of both to the 
extent that an accounting of disclosures is maintained.
    (iii) Of his right to judicial review in U.S. District Court.
    (7) The Appeal Authority shall act on the appeal or provide a notice 
of extension within 30 working days.



Sec. 326.14  Disclosure of records to person other than subject.

    (a) Personal records contained in a Privacy Act system of records 
maintained by NRO shall not be disclosed by any means to any person or 
agency outside the NRO except with the written consent of the individual 
subject of the record, unless as provided in this part.
    (b) Except for disclosure made to members of the NRO in connection 
with their official duties and disclosures required by the Freedom of 
Information Act, an accounting will be kept of all disclosures of 
records maintained in NRO systems of records and of all disclosures of 
investigative information. Accounting entries will record the date, kind 
of information, purpose of each disclosure, and the name and address of 
the person or agency to whom the disclosure is made. Accounting records 
will be maintained for at least five years after the last disclosure or 
for the life of the record, whichever is longer. Subjects of NRO records 
will be given access to associated accounting records upon request 
except for disclosures made pursuant to Sec. 326.4, or where an 
exemption has been properly claimed for the system of records.



Sec. 326.15  Fees.

    Individuals requesting copies of their official personnel records 
are entitled to one free copy; a charge will be assessed for additional 
copies. There is a cost of $.15 per page. Fees will not be assessed if 
the cost is less than $30.00. Fees should be paid by check or postal 
money order payable to the Treasurer of the United States and forwarded 
to the Privacy Act Coordinator, NRO, at the time the copy of the record 
is delivered. In some instances, fees will be due in advance.



Sec. 326.16  Penalties.

    Each request shall be treated as a certification by the requester 
that he is the individual named in the request. The Privacy Act provides 
criminal penalties for any person who knowingly and willfully requests 
or obtains any information concerning an individual under false 
pretenses.



Sec. 326.17  Exemptions.

    (a) All systems of records maintained by the NRO shall be exempt 
from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 
552a(k)(1) to the extent that the system contains any information 
properly classified under Executive Order 12958 and which is required by 
the Executive Order to be withheld in the interest of national defense 
of foreign policy. This exemption, which may be applicable to parts of 
all systems of records, is necessary because certain record systems not 
otherwise specifically designated for exemptions herein may contain 
items of information that have been properly classified.
    (b) No system of records within the NRO shall be considered exempt 
under subsection (j) or (k) of the Privacy Act until the exemption and 
the exemption rule for the system of records has been published as a 
final rule in the Federal Register.
    (c) An individual is not entitled to have access to any information 
compiled in reasonable anticipation of a civil action or proceeding (5 
U.S.C. 552a(d)(5)).
    (d) Proposals to exempt a system of records will be forwarded to the 
Defense Privacy Office, consistent with the requirements of 32 CFR part 
310, for review and action.
    (e) QNRO-23.
    (1) System name: Counterintelligence Issue Files.
    (2) Exemptions: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be

[[Page 1009]]

entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the identity of 
the recipient, could alert the subject to the existence of the 
investigation or prosecutable interest by NRO or other agencies. This 
could seriously compromise case preparation by prematurely revealing its 
existence and nature; compromise or interfere with witnesses or make 
witnesses reluctant to cooperate; and lead to suppression, alteration, 
or destruction of evidence.
    (ii) From subsections (d)(1) through (d)(4), and (f) because 
providing access to records of a civil or administrative investigation 
and the right to contest the contents of those records and force changes 
to be made to the information contained therein would seriously 
interfere with and thwart the orderly and unbiased conduct of the 
investigation and impede case preparation. Providing access rights 
normally afforded under the Privacy Act would provide the subject with 
valuable information that would allow interference with or compromise of 
witnesses or render witnesses reluctant to cooperate; lead to 
suppression, alteration, or destruction of evidence; enable individuals 
to conceal their wrongdoing or mislead the course of the investigation; 
and result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach in order to satisfy any 
Government claim growing out of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for law enforcement purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal violation will not be 
alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered, the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to

[[Page 1010]]

release information from these systems will be made on a case-by-case 
basis.
    (f) QNRO-10, Inspector General Investigative Files--(1) Exemption: 
This system may be exempt pursuant to 5 U.S.C. 552a(j)(2) if the 
information is compiled and maintained by a component of the agency 
which performs as its principle function any activity pertaining to the 
enforcement of criminal laws. Any portion of this system which falls 
within the provisions of 5 U.S.C. 552a(j)(2) may be exempt from the 
following subsections of 5 U.S.C. 552a (c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), (f), and (g).
    (2) Authority: 5 U.S.C. 552a(j)(2).
    (3) Reasons. (i) From subsection (c)(3) because the release of 
accounting of disclosure would inform a subject that he or she is under 
investigation. This information would provide considerable advantage to 
the subject in providing him or her with knowledge concerning the nature 
of the investigation and the coordinated investigative efforts and 
techniques employed by the cooperating agencies. This would greatly 
impede the NRO IG's criminal law enforcement.
    (ii) From subsection (c)(4) and (d), because notification would 
alert a subject to the fact that an open investigation on that 
individual is taking place, and might weaken the on-going investigation, 
reveal investigative techniques, and place confidential informants in 
jeopardy.
    (iii) From subsection (e)(1) because the nature of the criminal and/
or civil investigative function creates unique problems in prescribing a 
specific parameter in a particular case with respect to what information 
is relevant or necessary. Also, due to NRO IG's close liaison and 
working relationships with other Federal, state, local and foreign 
country law enforcement agencies, information may be received which may 
relate to a case under the investigative jurisdiction of another agency. 
The maintenance of this information may be necessary to provide leads 
for appropriate law enforcement purposes and to establish patterns of 
activity, which may relate to the jurisdiction of other cooperating 
agencies.
    (iv) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal and/or civil investigation.
    (v) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal and/or civil 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    (vi) From subsection (e)(4) (G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (vii) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of law enforcement for investigations to uncover the commission 
of illegal acts at diverse stages. It is frequently impossible to 
determine initially what information is accurate, relevant, timely, and 
least of all complete. With the passage of time, seemingly irrelevant or 
untimely information may acquire new significance as further 
investigation brings new details to light.
    (viii) From subsection (e)(8) because the notice requirements of 
this provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and existence of 
confidential investigations.
    (ix) From subsection (f) because the agency's rules are inapplicable 
to those portions of the system that are exempt and would place the 
burden on the agency of either confirming or denying the existence of a 
record pertaining to a requesting individual might in itself provide an 
answer to that individual relating to an on-going investigation. The 
conduct of a successful investigation leading to the indictment of a 
criminal offender precludes the applicability of established agency 
rules relating to verification of record, disclosure of the record to 
that individual, and record amendment procedures for this record system.

[[Page 1011]]

    (x) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 5 
U.S.C. 552a from which this rule exempts the system.
    (4) Exemptions. (i) Investigative material compiled for law 
enforcement purposes, other than material within the scope of subsection 
(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source.
    (ii) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (5) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (6) Reasons. (i) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (ii) From subsections (d) and (f) because providing access to 
investigative records and the right to contest the contents of those 
records and force changes to be made to the information contained 
therein would seriously interfere with and thwart the orderly and 
unbiased conduct of the investigation and impede case preparation. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety

[[Page 1012]]

of witnesses, informants and law enforcement personnel will not be 
endangered, the privacy of third parties will not be violated; and that 
the disclosure would not otherwise impede effective law enforcement. 
Whenever possible, information of the above nature will be deleted from 
the requested documents and the balance made available. The controlling 
principle behind this limited access is to allow disclosures except 
those indicated above. The decisions to release information from these 
systems will be made on a case-by-case basis.
    (g) QNRO-15, Facility Security Files.
    (1) Exemptions. (i) Investigative material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Investigative material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (2) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
    (3) Reasons. (i) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (ii) From subsections (d)(1) through (d)(4), and (f) because 
providing access to investigative records and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt

[[Page 1013]]

material in the records being maintained. Disclosure will be governed by 
NRO's Privacy Regulation, but will be limited to the extent that the 
identity of confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered; the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (h) QNRO-19.
    (1) System name: Customer Security Services Personnel Security 
Files.
    (2) Exemptions: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (ii) From subsections (d)(1) through (d)(4), and (f) because 
providing access to investigatory records and the right to contest the 
contents of those records and force changes to be made to the 
information contained therein would seriously interfere with and thwart 
the orderly and unbiased conduct of the investigation and impede case 
preparation. Providing access rights normally afforded under the Privacy 
Act would provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; enable individuals to conceal their wrongdoing or mislead 
the course of the investigation; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigatory purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system

[[Page 1014]]

notice, an exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal or civil violation will 
not be alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered; the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated in this paragraph. The decisions to release information from 
these systems will be made on a case-by-case basis.
    (i) NRO-21.
    (1) System name: Personnel Security Files.
    (2) Exemptions: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Therefore, portions of this system of records may be exempt 
pursuant to 5 U.S.C. 552a(k)(2) and/or (k)(5) from the following 
subsections of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons: (i) From subsection (c)(3) because to grant access to 
the accounting for each disclosure as required by the Privacy Act, 
including the date, nature, and purpose of each disclosure and the 
identity of the recipient, could alert the subject to the existence of 
the investigation or prosecutable interest by the NRO or other agencies. 
This could seriously compromise case preparation by prematurely 
revealing its existence and nature; compromise or interfere with 
witnesses or make witnesses reluctant to cooperate; and lead to 
suppression, alteration, or destruction of evidence.
    (ii) From subsections (d)(1) through (d)(4), and (f) because 
providing access to records of a civil or administrative investigation 
and the right to contest the contents of those records and force changes 
to be made to the information contained therein would seriously 
interfere with and thwart the orderly and unbiased conduct of the 
investigation and impede case preparation. Providing access rights 
normally afforded under the Privacy Act would provide the subject with 
valuable information that would allow interference with or compromise of 
witnesses or render witnesses reluctant to cooperate; lead to 
suppression, alteration, or destruction of evidence; enable individuals 
to conceal their wrongdoing or mislead the course of the investigation; 
and result in the secreting of or other disposition of assets that would 
make them difficult or impossible to reach in order to satisfy any 
Government claim growing out of the investigation or proceeding.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.

[[Page 1015]]

    (iv) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for law enforcement purposes and is exempt from the 
access provisions of subsections (d) and (f).
    (v) From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. NRO will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.
    (vi) Consistent with the legislative purpose of the Privacy Act of 
1974, the NRO will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by NRO's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal violation will not be 
alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered; the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (j) QNRO-4.
    (1) System name: Freedom of Information Act and Privacy Act Files.
    (2) Exemption: During the processing of a Freedom of Information 
Act/Privacy Act request, exempt materials from other systems of records 
may in turn become part of the case record in this system. To the extent 
that copies of exempt records from those ``other'' systems of records 
are entered into this system, the NRO hereby claims the same exemptions 
for the records from those ``other'' systems that are entered into this 
system, as claimed for the original primary system of which they are a 
part.
    (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (4) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent such provisions have been identified and an exemption 
claimed for the original record and the purposes underlying the 
exemption for the original record still pertain to the record which is 
now contained in this system of records. In general, the exemptions were 
claimed in order to protect properly classified information relating to 
national defense and foreign policy, to avoid interference during the 
conduct of criminal, civil, or administrative actions or investigations, 
to ensure protective services provided the President and others are not 
compromised, to protect the identity of confidential sources incident to 
Federal employment, military service, contract, and security clearance 
determinations, and to preserve the confidentiality and integrity of 
Federal evaluation materials. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.

[65 FR 20372, Apr. 17, 2000, as amended at 66 FR 41783, Aug. 9, 2001; 66 
FR 54926, Oct. 31, 2001; 67 FR 17616, Apr. 11, 2002]



PART 327_DEFENSE COMMISSARY AGENCY PRIVACY ACT PROGRAM--Table of Contents




Sec.
327.1 Purpose.
327.2 Applicability.
327.3 Responsibilities.
327.4 Definitions.
327.5 Systems of records.
327.6 Collecting personal information.
327.7 Access by individuals.
327.8 Disclosure of personal information to other agencies and third 
          parties.

Appendix A to Part 327--Sample DeCA response letter.
Appendix B to Part 327--Internal Management Control Review Checklist.
Appendix C to Part 327--DeCA Blanket Routine Uses.

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 522a).

    Source: 65 FR 39806, June 28, 2000, unless otherwise noted.

[[Page 1016]]



Sec. 327.1  Purpose.

    This part implements the basic policies and procedures for the 
implementation of the Privacy Act of 1974, as amended (5 U.S.C. 552a); 
OMB Circular A-130; \1\ and 32 CFR part 310; and to promote uniformity 
in the DeCA Privacy Act Program.
---------------------------------------------------------------------------

    \1\ Copies may be obtained: http://www.whitehouse.gov/OMB/circulars.
---------------------------------------------------------------------------



Sec. 327.2  Applicability.

    This part applies to Headquarters, Field Operating Activities (FOA), 
Regions, Zones, Central Distribution Centers (CDC), Commissaries of 
DeCA, and contractors during the performance of a contract with DeCA. 
All personnel are expected to comply with the procedures established 
herein.



Sec. 327.3  Responsibilities.

    (a) The Director, DeCA. (1) Supervises the execution of the Privacy 
Act and this part within the DeCA, and serves as the DeCA Privacy Act 
Appeal Authority.
    (2) Appoints:
    (i) The Executive Director for Support as the DeCA Initial Denial 
Authority for the DeCA Privacy Act Program.
    (ii) The Records Manager, Office of Safety, Security, and 
Administration as the DeCA Privacy Act Officer.
    (b) The Privacy Act Officer, DeCA. (1) Establishes and manages the 
PA program for DeCA.
    (2) Provides guidance, assistance and training.
    (3) Controls and monitors all requests received and prepares 
documentation to the office of primary responsibility (OPR) for 
response.
    (4) Prepares response to requester based on information provided by 
the OPR.
    (5) Signs all response requests for releasable information to the 
requester after coordination through the General Counsel. Ensures that 
all denied requests for information are released by the DeCA Initial 
Denial Authority.
    (6) Publishes instructions to contractors that:
    (i) Provide DeCA Privacy program guidance to their personnel who 
solicit, award, or administer government contracts;
    (ii) Inform prospective contractors of their responsibilities 
regarding the DeCA Privacy Program; and
    (iii) Establish an internal system of contractor performance review 
to ensure compliance with DeCA's Privacy program.
    (iv) Prepare and submit System Notices to the Defense Privacy Office 
for publication in the Federal Register.
    (7) Maintain Privacy Case files and records of disclosure 
accounting.
    (8) Submit the DeCa Annual Privacy Act Report (RCS: DD-DA&M(A)1379) 
to the Defense Privacy Office.
    (c) DeCA Directorates/Staff Offices. (1) Provide response and the 
information requested to the PA Officer for release to the individual.
    (2) In the event the information is to be denied release, the 
requested information and rationale for denial will be forwarded to the 
PA Officer for denial determination.
    (d) Regions. Regional Directors will appoint a Regional PA 
Coordinator who will maintain suspense control of PA actions, prepare 
documentation to the OPR for response, forward the information to the 
DeCA PA Officer for release determination, and notify the requester that 
the response will be received from the DeCA PA Officer using the format 
in Appendix A to this part.
    (e) DeCA Field Operating Activities (FOAs). (1) Upon receipt of a PA 
request that has not been received from the DeCA PA Officer, notify the 
DeCA PA Officer within 2 days.
    (2) Collect all information available and forward to the DeCA PA 
Officer. If the requested information is not available, provide the DeCA 
PA Officer the rationale to respond to the requester.
    (f) Central Distribution Centers (CDCs) and Commissaries. (1) Upon 
receipt of a PA request, not received from the Region Coordinator, 
notify the Region Coordinator within 2 days.
    (2) Collect all information available and forward it to the Region 
Coordinator for submission to DeCA PA Officer. If requested information 
is not available, provide the Region Coordinator the rationale so they 
can prepare a response to the DeCA PA Officer. If

[[Page 1017]]

the information is available but determined to be exempt, provide the 
Region Coordinator with the requested information and specific reasons 
why the request should be denied. The Region Coordinator will formalize 
a reply to the DeCA PA Officer, forwarding requested information and 
reasons for denial. The DeCA PA Officer will prepare the response to the 
requester with coordination by the General Counsel and signature by the 
IDA.



Sec. 327.4  Definitions.

    Access. The review of a record of a copy of a record or parts 
thereof in a system of records by any individual.
    Agency. For the purposes of disclosing records subject to the 
Privacy Act among DoD Components, the Department of Defense is 
considered a single agency. For all other purposes to include 
applications for access and amendment, denial of access or amendment, 
appeals from denials, and record keeping as regards release to non-DoD 
agencies; each DoD Component is considered an agency within the meaning 
of the Privacy Act.
    Computer room. Any combination of electronic hardware and software 
integrated in a variety of forms (firmware, programmable software, hard 
wiring, or similar equipment) that permits the processing of textual 
data. The equipment contains device to receive information and other 
processors with various capabilities to manipulate the information, 
store and provide input.
    Confidential source. A person or organization who has furnished 
information to the federal government under an express promise that the 
person's or the organization's identity will be held in confidence or 
under an implied promise of such confidentiality if this implied promise 
was made before September 27, 1975.
    Disclosure. The transfer of any personal information from a system 
of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review) to any person, private entity, 
or government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.
    Federal Register system. Established by Congress to inform the 
public of interim, proposed, and final regulations or rulemaking 
documents having substantial impact on the public. In this case, DeCA 
directives have the same meaning as regulations or rulemaking documents. 
The secondary role of the Federal Register system is to publish notice 
documents of public interest.
    Individual. A living person who is a citizen of the United States or 
an alien lawfully admitted for permanent residence. The parent of a 
minor or the legal guardian of any individual also may act on behalf of 
an individual. Corporations, partnerships, sole proprietorships, 
professional groups, businesses, whether incorporated or unincorporated, 
and other commercial entities are not ``individuals.''
    Individual access. Access to information pertaining to the 
individual by the individual or his or her designated agent or legal 
guardian.
    Law enforcement activity. Any activity engaged in the enforcement of 
criminal laws, including efforts to prevent, control, or reduce crime or 
to apprehend criminals, and the activities of prosecutors, courts, 
correctional, probation, pardon, or parole authorities.
    Maintain. Includes maintain, collect, use or disseminate.
    Official use. Within the context of this part, this term is used 
when officials and employees of a DoD Component have a demonstrated need 
for the use of any record or the information contained therein in the 
performance of their official duties, subject to DoD 5200.1-R,\2\ ``DoD 
Information Security Program Regulation.''
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    \2\ Copies may be obtained: http://www.whs.osd.mil/corres.htm.
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    Personal information. Information about an individual that 
identifies, relates or is unique to, or describes him or her; e.g., a 
social security number, age, military rank, civilian grade, marital 
status, race, salary, home/office phone numbers, etc.
    Privacy Act. The Privacy Act of 1974, as amended, (5 U.S.C. 552a).
    Privacy Act request. A request from an individual for notification 
as to the existence of, access to, or amendment of records pertaining to 
that individual. These records must be maintained in a system of 
records.

[[Page 1018]]

    Member of the public. Any individual or party acting in a private 
capacity to include federal employees or military personnel.
    Record. Any item, collection, or grouping of information, whatever 
the storage media (e.g., paper, electronic, etc.), about an individual 
that is maintained by a DoD Component, including but not limited to, his 
or her education, financial transactions, medical history, criminal or 
employment history and that contains his or her name, or the identifying 
number, symbol, or other identifying particular assigned to the 
individual, such as a finger or voice print or a photograph.
    Risk assessment. An analysis considering information sensitivity, 
vulnerabilities, and the cost to a computer facility or word processing 
activity in safeguarding personal information processed or stored in the 
facility or activity.
    Routine use. The disclosure of a record outside the Department of 
Defense for a use that is compatible with the purpose for which the 
information was collected and maintained by the Department of Defense. 
The routine use must be included in the published system notice for the 
system of records involved.
    Statistical record. A record maintained only for statistical 
research or reporting purposes and not used in whole or in part in 
making determinations about specific individuals.
    System manager. The DoD Component official who is responsible for 
the operation and management of a system of records.
    System of records. A group of records under the control of a DoD 
Component from which personal information is retrieved by the 
individual's name or by some identifying number, symbol, or other 
identifying particular assigned to an individual.
    Word processing system. A combination of equipment employing 
automated technology, systematic procedures, and trained personnel for 
the primary purpose of manipulating human thoughts and verbal or written 
or graphic presentations intended to communicate verbally or visually 
with another individual.
    Word processing equipment. Any combination of electronic hardware 
and computer software integrated in a variety of forms (firmware, 
programmable software, hard wiring, or similar equipment) that permits 
the processing of textual data. Generally, the equipment contains a 
device to recieve information, a computer-like processor with various 
capabilities to manipulate the information, a storage medium, and an 
output device.



Sec. 327.5  Systems of records.

    (a) System of records. To be subject to the provisions of this part, 
a ``system of records'' must:
    (1) Consist of ``records'' that are retrieved by the name of an 
individual or some other personal identifier, and
    (2) Be under the control of DeCA.
    (b) Retrieval practices. Records in a group of records that may be 
retrieved by a name or personal identifier are not covered by this part 
even if the records contain personal data and are under the control of 
DeCA. The records MUST BE, in fact, retrieved by name or other personal 
identifier to become a system of records for DeCA.
    (c) Relevance and necessity. Only those records that contain 
personal information which is relevant and necessary to accomplish a 
purpose required by Federal statute or an Executive Order will be 
maintained by DeCA.
    (d) Authority to establish systems of records. Director, DeCA has 
the authority to establish systems of records; however, each time a 
system of records is established, the Executive Order or Federal statute 
that authorizes maintaining the personal information must be identified.
    (1) DeCA will not maintain any records describing how an individual 
exercises his or her rights guaranteed by the First Amendment of the 
U.S. Constitution.
    (2) These rights include, but are not limited to, freedom of 
religion, freedom of political beliefs, freedom of speech, freedom of 
the press, the right to assemble, and the right to petition.
    (e) System manager's evaluation. Systems managers, along with the 
DeCA Privacy Officer, shall evaluate the information to be included in 
each new system before establishing the system

[[Page 1019]]

and evaluate periodically the information contained in each existing 
system of records for relevancy and necessity. Such a review will also 
occur when a system notice amendment or alteration is prepared. Consider 
the following:
    (1) The relationship of each item of information retained and 
collected to the purpose for which the system is maintained.
    (2) The specific impact on the purpose or mission of not collecting 
each category of information contained in the system.
    (3) The possibility of meeting the informational requirements 
through use of information not individually identifiable or through 
other techniques, such as sampling.
    (4) The length of time each item of personal information must be 
retained.
    (5) The cost of maintaining the information.
    (6) The necessity and relevancy of the information to the purpose 
for which it was collected.
    (f) Discontinued information requirements. (1) When notification is 
received to stop collecting any category or item of personal 
information, the DeCA PA Officer will issue instructions to stop 
immediately and also excise this information from existing records, when 
feasible, and amend existing notice.
    (2) Disposition of these records will be provided by the DeCA PA 
Officer in accordance with the DeCA Filing System.\3\
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    \3\ Copies may be obtained: Defense Commissary Agency, ATTN: FOIA/
Privacy Officer, 1300 E. Avenue, Fort Lee, VA 23801-1800.
---------------------------------------------------------------------------

    (g) Government contractors. (1) When DeCA contracts for the 
operation or maintenance of a system of records or a portion of a system 
of records by a contractor, the record system or the portion affected 
are considered to be maintained by DeCA and are subject to this part. 
DeCA is responsible for applying the requirements of this part to the 
contractor. The contractor and its employees are to be considered 
employees of DeCA for the purposes of the approved provisions of the 
Privacy Act during the performance of the contract. Consistent with the 
Defense Acquisition Regulation, contracts requiring the maintenance of a 
system of records or the portion of a system of records shall identify 
specifically the record system and the work to be performed and shall 
include in the solicitation and resulting contract such terms as are 
prescribed in the Defense Acquisition Regulation (DAR).\4\
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    \4\ See footnote 3 to Sec. 327.5.
---------------------------------------------------------------------------

    (2) If the contractor must use or have access to individually 
identifiable information subject to this part to perform any part of a 
contract, and the information would have been collected and maintained 
by DeCA but for the award of the contract, these contractor activities 
are subject to this part.
    (3) The restrictions in paragraphs (g)(1) and (g)(2) of this section 
do not apply to records:
    (i) Established and maintained to assist in making internal 
contractor management decisions such as those maintained for use in 
managing the contract.
    (ii) Those maintained as internal contractor employee records even 
when used in conjunction with providing goods and services to DeCA.
    (4) Disclosure of records to contractors. Disclosure of personal 
records to a contractor for the use in the performance of any DeCA 
contract is considered a disclosure within the Department of Defense 
(DoD). The contractor is considered the agent of DeCA and is to be 
maintaining and receiving the records for DeCA.
    (h) Safeguarding personal information. DeCA personnel will protect 
records in every system of records for confidentiality against 
alteration, unauthorized disclosure, embarrassment, or unfairness to any 
individual about when information is kept.
    (1) Supervisor/Manager paper records maintained by DeCA personnel 
will be treated as `For Official Use Only' (FOUO) documents and secured 
in locked file cabinets, desks or bookcases during non-duty hours. 
During normal working hours, these records will be out-of-sight if the 
working area is accessible to non-government personnel.
    (2) Personnel records maintained by DeCA computer room or stand 
alone systems, will be safeguarded at all

[[Page 1020]]

times. Printed computer reports containing personal data must carry the 
markings FOUO. Other media storing personal data such as tapes, reels, 
disk packs, etc., must be marked with labels which bear FOUO and 
properly safeguarded.
    (3) Adherence to paragraphs (h)(1) and (h)(2) of this section, 
fulfills the requirements of 32 CFR part 285.
    (i) Records disposal. (1) DeCA records containing personal data will 
be shredded or torn to render the record unrecognizable or beyond 
reconstruction.
    (2) The transfer of large quantities of DeCA records containing 
personal data to disposal activities is not considered a release of 
personal information under this part. The volume of such transfers makes 
it difficult or impossible to identify easily specific individual 
records. Care must be exercised to ensure that the bulk is maintained so 
as to prevent specific records from becoming readily identifiable. If 
the bulk is amintained, no special procedures are required. if the bulk 
cannot be maintained, dispose of the records by shredding or tearing to 
render the record unrecognizable or beyond reconstruction.



Sec. 327.6  Collecting personal information

    (a) Collect directly from the individual. To the greatest extent 
practicable, collect personal information directly from the individual 
to whom it pertains if the information may be used in making any 
determination about the rights, privileges, or benefits of the 
individual under any Federal program.
    (b) Collecting personal information from third parties. It may not 
be practical to collect personal information directly from an individual 
in all cases. Some examples of this are:
    (1) Verification of information through third party sources for 
security or employment suitability determinations;
    (2) Seeking third party opinions such as supervisory comments as to 
job knowledge, duty performance, or other opinion-type evaluations;
    (3) When obtaining the needed information directly from the 
individual is exceptionally difficult or may result in unreasonable 
costs; or
    (4) Contacting a third party at the request of the individual to 
furnish certain information such as exact periods of employment, 
termination dates, copies of records, or similar information.
    (c) Collecting social security numbers (SSNs). (1) It is unlawful 
for DeCA to deny an individual any right, benefit, or privilege provided 
by law because an individual refuses to provide his or her SSN. 
Executive Order 9397 authorizes solicitation and use of SSNs as 
numerical identifiers for individuals in most Federal record systems, 
however, it does not provide mandatory authority for soliciting.
    (2) When an individual is requested to provide their SSN, they must 
be told:
    (i) the uses that will be made of the SSN;
    (ii) The statute, regulation or rule authorizing the solicitation of 
the SSN; and
    (iii) Whether providingthe SSN is voluntary or mandatory.
    (3) Once the SSN has been furnished for the purpose of establishing 
a record, the notification in paragraph (c)(2) of this section is not 
required if the individual is only requested to furnish or verify the 
SSNs for identification purposes in connection with the normal use of 
his or her records.
    (d) Privacy act statements. When a DeCA individual is requested to 
furnish personal information about himself or herself for inclusion in a 
system of records, a Privacy Act Statement is required regardless of the 
medium used to collect the information, e.g. forms, personal interviews, 
telephonic interviews. The statement allows the individual to make a 
decision whether to provide the information requested. The statement 
will be concise, curent, and easily understood and must state whether 
providing the information is voluntary or mandatory. if furnishing the 
data is mandatory, a Federal statute, Executive Order, regulation or 
other lawful order must be cited. If the personal information solicited 
is not to be incorporated into a DeCA system of records, a PA statement 
is not required. This information obtained without the PA statement will 
not be incorporated into any DeCA systems of records.
    (1) The DeCA Privacy Act Statement will include:

[[Page 1021]]

    (i) The specific Federal statute or Executive Order that authorized 
collection of the requested information;
    (ii) The principal purpose or purposes for which the information is 
to be used;
    (iii) The routine uses that will be made of the information;
    (iv) Whether providing the information is voluntary or mandatory; 
and
    (v) The effects on the individual if he or she chooses not to 
provide the requested information.
    (2) Forms. When DeCA uses forms to collect personal information, 
placement of the Privacy Act advisory statement should be in the 
following order of preference:
    (i) Below the title of the form and positioned so the individual 
will be advised of the requested information,
    (ii) Within the body of the form with a notation of its location 
below the title of the form,
    (iii) On the reverse of the form with a notation of its location 
below the title of the form,
    (iv) Attached to the form as a tear-off sheet, or
    (v) Issued as a separate supplement to the form.
    (3) Forms issued by non-DoD Activities. Ensure that the statement 
prepared by the originating agency on their forms is adequate for the 
purpose for which DeCA will use the form. If the statement is 
inadequate, DeCA will prepare a new statement before using the form. 
Forms issued by other agencies not subject to the Privacy Act but its 
use requires DeCA to collect personal data, a Privacy Act Statement will 
be added.



Sec. 327.7  Access by individuals

    (a) Individual access to personal information. Release of personal 
information to individuals whose records are maintained in a systems of 
records under this part is not considered public release of information. 
DeCA will release to the individuals all of the personal information, 
except to the extent the information is contained in an exempt system of 
records.
    (1) Requests for access. (i) Individuals in DeCA Headquarters and 
FOAs will address requests for access to their personal information to 
the DeCA Privacy Act Officers. Individuals in Regions, CDCs, and 
commissaries, will address requests to their respective Region Privacy 
Act Coordinator. The individual is not required to explain or justify 
why access is being sought.
    (ii) If an individual wishes to be accompanied by a third party when 
seeking access to his or her records or to have the records released 
directly to the third party, a signed access authorization granting the 
third party access is required.
    (iii) A DeCA individual will not be denied access to his or her 
records because he or she refuses to provide his or her SSN unless the 
SSN is the only way retrieval can be made.
    (2) Granting access. (i) If the record is not part of an exempt 
system, DeCA personnel will be granted access to the original record or 
an exact copy of the original record without any changes or deletions. 
Medical records will be disclosed to the individual to whom they pertain 
unless an individual fails to comply with the established requirements. 
This includes refusing to name a physician to receive medical records 
when required, refusing to pay fees, or when a judgment is made that 
access to such records may have an adverse effect on the mental or 
physical health of the individual. Where an adverse effect may result, a 
release will be made in consultation with a physician.
    (ii) DeCA personnel may be denied access to information compiled in 
reasonable anticipation of a civil action or proceeding. The term 
``civil proceeding'' is intended to include quasi-judicial and pretrial 
judicial proceedings. Information prepared in conjunction with the 
quasi-judicial, pretrial and trial proceedings to include those prepared 
by DeCA legal and non-legal officials of the possible consequences of a 
given course of action are protected from access.
    (iii) Requests by DeCA personnel for access to investigatory records 
pertaining to themselves, compiled for law enforcement purposes, are 
processed under this part and that of 32 CFR part 310. Those requests by 
DeCA personnel for investigatory records pertaining to themselves that 
are in records systems exempt from access provisions shall be processed 
under this part or 32 CFR part 285, depending upon which provides the 
greatest degree of access.

[[Page 1022]]

    (3) Non agency records. (i) Uncirculated personal notes and records 
that are not given or circulated to any person or organization (example, 
personal telephone list) that are kept or discarded at the author's 
discretion and over which DeCA exercises no direct control, are not 
considered DeCA records. However, if personnel are officially directed 
or encouraged, either in writing or orally, to maintain such records, 
they may become ``agency records'' and may be subject to this part.
    (ii) Personal uncirculate handwritten notes of team leaders, office 
supervisors, or military supervisory personnel concerning subordinates 
are not a system of records within the meaning of this part. Such notes 
are an extension of the individual's memory. These notes, however, must 
be maintained and discarded at the discretion of the individual 
supervisor and not circulated to others. Any established requirement to 
maintain such notes (written or oral directives, regulation or command 
policy) make these notes ``AGENCY RECORDS.'' If the notes are 
circulated, they must be made a part of the system of records. Any 
action that gives personal notes the appearance of official agency 
records is prohibited unless they have been incorporated into a DeCA 
system of records.
    (b) Relationship between the Privacy Act and the Freedom of 
Information Act (FOIA). (1) Requests from DeCA individuals for access to 
a record pertaining to themselves made under the FOIA are processed 
under the provisions of this part, 32 CFR part 310 and DeCA Directive 
30-12, Freedom of Information Act (FOIA) Program. \5\
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    \5\ See footnote 3 to Sec. 327.5.
---------------------------------------------------------------------------

    (2) Request from DeCA individuals or access to a record pertaining 
to themselves are processed under this part and 32 CFR part 310.
    (3) Requests from DeCA individuals for access to records about 
themselves that cite both Acts or the DeCA implementing directives for 
both Acts are processed under this part except:
    (i) When the access provisions of the FOIA provide a greater degree 
of access process under the FOIA, or
    (ii) When access to the information sought is controlled by another 
Federal statute process access procedures under the controlling statute.
    (4) Requests from DeCA individuals for access to information about 
themselves in a system of records that do not cite either Act or DeCA 
implementing directive are processed under the procedures established by 
this part.
    (5) DeCA requesters will not be denied access to personal 
information concerning themselves that would be releasable to them under 
either Act because they fail to cite either Act or the wrong Act. The 
Act or procedures used in granting or denying access will be explained 
to requesters.,
    (6) DeCA requesters should receive access to their records within 30 
days.
    (7) Records in all DeCA systems maintained in accordance with the 
Government-wide systems notices are in temporary custody of DeCA, and 
all requests or amend these records will be processed in accordance with 
this part.
    (c) Denial of individual access. (1) A DeCA individual may be denied 
formal access to a record pertaining to him/her only if the record:
    (i) Was compiled in reasonable anticipation of civil action.
    (ii) Is in a system of records that has been exempt from access 
provisions of this part.
    (iii) All systems of records maintained by the Defense Commissary 
Agency shall be exempt from the requirements of 5 U.S.C. 552a(d) 
pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains 
any information properly classified under Executive Order 12958 and 
which is required by the Executive Order to be withheld in the interest 
of national defense or foreign policy. This exemption, which may be 
applicable to parts of all systems of records, is necessary because 
certain record systems not otherwise specifically designated for 
exemptions herein may contain items of information that have been 
properly classified.
    (iv) Is contained in a system of records for which access may be 
denied under some other Federal statute.
    (v) All systems of records maintained by the DeCA shall be exempt 
from the requirements of 5 U.S.C. 552a(d) pursuant to 5 U.S.C. 
552a(k)(1) to the extent

[[Page 1023]]

that the system contains any information properly classified under 
Executive Order 12958 and which is required by the Executive Order to be 
withheld in the interest of national defense of foreign policy. This 
exemption, which may be applicable to parts of all systems of records, 
is necessary because certain record systems not otherwise specifically 
designated for exemptions herein may contain items of information that 
have been properly classified.
    (2) DeCA individuals will only be denied access to those portions of 
the records from which the denial of access serves some legitimate 
governmental purpose.
    (3) Other reasons to refuse DeCA individuals are:
    (i) The request is not described well enough to locate it within a 
reasonable amount of effort by the PA Officer or PA Coordinator; or
    (ii) An individual fails to comply with the established requirements 
including refusing to name a physician to receive medical records when 
required or to pay fees.
    (4) Only the DeCA IDA can deny access. This denial must be in 
writing and contain:
    (i) The date of the denial, name, title of position, and signature 
of the DeCA Initial Denial Authority.
    (ii) The specific reasons for the denial, including specific 
reference to the appropriate sections of the PA, other statutes, this 
part or the Code of Federal Regulations (CFR);
    (iii) Information providing the right to appeal the denial through 
the DeCa appeal procedure within 60 days, and the title, position and 
address of the DeCA PA Appellate Authority.
    (5) DeCA Appeal Procedures. The Director of DeCA, or the designee, 
will review any appeal by an individual from a denial of access to DeCA 
records. Formal written notification will be provided to the individual 
explaining whether the denial is sustained totally or in part. The DeCA 
PA Officer will:
    (i) Assign a control number and process the appeal to the Director, 
DeCA or the designee appointed by the Director.
    (ii) Provide formal written notification to the individual by the 
appeal authority explaining whether the denial is sustained totally or 
in part and the exact reasons for the denial to include provisions of 
the Act, other statute, this part or the CFR whichever the determination 
is based, or
    (iii) Provide the individual access to the material if the appeal is 
granted.
    (iv) Process all appeals within 30 days of receipt unless the appeal 
authority determines the review cannot be made within that period and 
provide notification to the individual the reasons for the delay and 
when an answer may be expected.
    (d) Amendment of records. (1) DeCA employees are encouraged to 
review the personal information being maintained abut them periodically. 
An individual may request amendment of any record contained in a system 
of records unless the system of records has been exempt specifically 
from the amendment procedures by the Director, DeCa. A request for 
amendment must include:
    (i) A description of the item or items to be amended.
    (ii) The specific reason for the amendment.
    (iii) The type of amendment action such as deletion, correction or 
addition.
    (iv) Copies of evidence supporting the request.
    (v) DeCA employees may be required to provide identification to make 
sure that they are indeed seeking to amend a record pertaining to 
themselves.
    (2) The amendment process is not intended to permit the alteration 
of evidence presented in the course of judicial or quasi-judicial 
proceedings. Amendments to these records are made through specific 
procedures established for the amendment of these records.
    (i) Written notification will be provided to the requester within 10 
working days of its receipt by the DeCA PA Officer. No notification will 
be provided to the requester if the action completed within the 10 days. 
Only under exceptional circumstances will more than 30 days be required 
to reach the decision to amend a request. If the decision is to grant 
all or in part of the request for amendment, the record will be amended 
and the requester informed and all other offices/personnel known to be 
keeping the information.

[[Page 1024]]

    (ii) If the request for amendment is denied in whole or in part, The 
PA Officer will notify the individual in writing and provide the 
specific reasons and the procedures for appealing the decision.
    (iii) All appeals are to be processed within 30 days. If additional 
time is required, the requester will be informed and provided when a 
final decision may be expected.
    (e) Fee assessments. (1) DeCA personnel will only be charged the 
direct cost of copying and reproduction, computed using the appropriate 
portions of the fee schedule in DeCA Directive 30-12.\6\ Normally, fees 
are waived automatically if the direct costs of a given request are less 
than $30. This fee waiver provision does not apply when a waiver has 
been granted to the individual before, and later requests appear to be 
an extension or duplication of that original request. Decisions to waive 
or reduce fees that exceed the automatic waiver threshold will be made 
on a case-by-case basis. Fees may not be charged when:
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    \6\ See footnote 3 to Sec. 327.5.
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    (i) Copying is performed for the convenience of the Government or is 
the only means to make the record available for the individual.
    (ii) No reading room is available for the individual to review the 
record or a copy is made to keep the original in DeCA files.
    (iii) The information may be obtained without charge under any other 
regulation, directive, or statute.
    (2) No fees will be collected for search, retrieval, and review of 
records to determine releasability, copying of records when the 
individual has not requested a copy, transportation of records and 
personnel, or normal postage.



Sec. 327.8  Disclosure of personal information to other agencies and 
third parties

    (a) Disclosures and nonconsensual disclosures. (1) All requests made 
by DeCA individuals for personal information about other individuals 
(third parties) will be processed under DeCA Directive 30-12 \7\ except 
when the third party personal information is contained in the Privacy 
record of the individual making the request.
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    \7\ See footnote 3 to Sec. 327.5.
---------------------------------------------------------------------------

    (2) For the purposes of disclosure and disclosure accounting, the 
Department of Defense is considered a single agency.
    (3) Personal information from DeCA systems of records will not be 
disclosed outside the DoD unless:
    (i) The record has been requested by the individual to whom it 
pertains,
    (ii) Written consent has been given by the individual to whom the 
record pertains for release to the requesting agency, activity, or 
individual, or
    (iii) The release is pursuant to one of the specific nonconsensual 
purposes set forth in the Act.
    (4) Records may be disclosed without the consent of a DeCA 
individual to any DoD official who has need for the record in the 
performance of their assigned duties. Rank, position, or title alone 
does not authorize this access. An official need for this information 
must exist.
    (5) DeCA records must be disclosed if their release is required by 
32 CFR part 285, which is implemented by DeCA Directive 30-12.\8\ 32 CFR 
part 285 requires that records be made available to the public unless 
exempt from disclosure under the FOIA.
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    \8\ See footnote 3 to Sec. 327.5.
---------------------------------------------------------------------------

    (b) Normally releasable information. Personal information that is 
normally releasable without the consent of a DeCA individual that does 
not imply a clearly unwarranted invasion of personal privacy:
    (1) Civilian employees:
    (i) Name,
    (ii) Present and past position titles,
    (iii) Present and past grades,
    (iv) Present and past salaries,
    (v) Present and past duty stations,
    (vi) Office or duty telephone numbers,
    (2) Military members:
    (i) Full name,
    (ii) Rank,
    (iii) Date of rank,
    (iv) Gross salary,
    (v) Past duty assignments,
    (vi) Present duty assignments,
    (vii) Future assignments that are officially established,

[[Page 1025]]

    (viii) Office or duty telephone numbers,
    (ix) Source of commission,
    (x) Promotion sequence number,
    (xi) Awards and decorations,
    (xii) Attendance at professional military schools,
    (xiii) Duty status at any given time.
    (3) All disclosures of personal information on civilian employees 
shall be made in accordance with the Office of Personnel Management 
(OPM) and all disclosures of personal information on military members 
shall be made in accordance with the standards established by 32 CFR 
part 285.
    (4) The release of DeCA employees' home addresses and home telephone 
numbers is considered a clearly unwarranted invasion of personal privacy 
and is prohibited; however, these may be released without prior consent 
of the employee if:
    (i) The employee has indicated previously that he or she consents to 
their release,
    (ii) The releasing official was requested to release the information 
under the provisions of 32 CFR part 285.
    (5) Before listing home addresses and home telephone numbers in any 
DeCA telephone directory, give the individuals the opportunity to refuse 
such a listing.
    (c) Disclosures for established routine uses. (1) Records may be 
disclosed outside of DeCA without consent of the individual to whom they 
pertain for an established routine use.
    (2) A routine use shall:
    (i) Be compatible with the purpose for which the record was 
collected;
    (ii) Indicate to whom the record may be released;
    (iii) Indicate the uses to which the information may be put by the 
receiving agency; and
    (iv) Have been published previously in the Federal Register.
    (3) A routine use will be established for each user of the 
information outside DeCA who need official access to the records. This 
use may be discontinued or amended without the consent of the 
individual/s involved. Any routine use that is new or changed is 
published in the Federal Register 30 days before actually disclosing the 
record. In addition to routine uses established by DeCA individual 
system notices, blanket routine uses have been established. See Appendix 
C to this part.
    (d) Disclosure without consent. DeCA records may be disclosed 
without the consent of the individual to whom they pertain to another 
agency within or under the control of the U.S. for a civil or criminal 
law enforcement activity if:
    (1) The civil or criminal law enforcement activity is authorized by 
law (Federal, State, or local); and
    (2) The head of the agency or instrumentality (or designee) has made 
a written request to the Component specifying the particular record or 
portion desired and the law enforcement activity for which it is sought.
    (3) Blanket requests for any and all records pertaining to an 
individual shall not be honored. The requesting agency or 
instrumentality must specify each record or portion desired and how each 
relates to the authorized law enforcement activity.
    (4) This disclosure provision applies when the law enforcement 
agency or instrumentality request the record, If the DoD Component 
discloses a record outside the DoD for law enforcement purposes without 
the individual's consent and without an adequate written request, the 
disclosure must be pursuant to an established routine use, such as the 
blanket routine use for law enforcement.
    (e) Disclosures to the public from health care records. (1) The 
following general information may be released to the news media or 
public concerning a DeCA employee treated or hospitalized in DoD medical 
facilities and non-Federal facilities for whom the cost of the care is 
paid by DoD:
    (i) Personal information concerning the patient that is provided in 
Sec. 327.8 and under provisions of 32 CFR part 285.
    (ii) The medical condition such as the date of admission or 
disposition and the present medical assessment of the individual's 
condition in the following terms if the medical doctor has volunteered 
the information:
    (A) The individual's condition is presently (stable) (good) (fair) 
(serious) or (critical), and

[[Page 1026]]

    (B) Whether the patient is conscious, semi-conscious or unconscious.
    (2) Detailed medical and other personal information may be released 
on a DeCA employee only if the employee has given consent to the 
release. If the employee is not conscious or competent, no personal 
information, except that required by 32 CFR part 285, will be released 
until there has been enough improvement in the patient's condition for 
them to give informed consent.
    (3) Any item of personal information may be released on a DeCA 
patient if the patient has given consent to its release.
    (4) This part does not limit the disclosure of personal medical 
information for other government agencies' use in determining 
eligibility for special assistance or other benefits provided disclosure 
in pursuant to a routine use.

           Appendix A to Part 327--Sample DeCA Response Letter

Mrs. Floria Employee
551 Florida Avenue
Oakland, CA 94618

    Dear Mrs. Employee: This responds to your Privacy Act request dated 
(enter date of request), in which you requested (describe requested 
records).
    Your request has been referred to our headquarters for further 
processing. They will respond directly to you. Any questions concerning 
your request may be made telephonically (enter Privacy Officer's 
telephone number) or in writing to the following address:
    Defense Commissary Agency, Safety, Security, and Administration, 
Attention: FOIA/PA Officer, Fort Lee, VA 23801-1800.
    I trust this information is responsive to your needs.

(Signature block)

  Appendix B to Part 327--Internal Management Control Review Checklist

    (a) Task: Personnel and/or Organization Management.
    (b) Subtask: Privacy Act (PA) Program.
    (c) Organization:
    (d) Action officer:
    (e) Reviewer:
    (f) Date completed:
    (g) Assessable unit: The assessable units are HQ, DeCA, Regions, 
Central Distribution Centers, Field Operating Activities, and 
commissaries. Each test question is annotated to indicate which 
organization(s) is (are) responsible for responding to the question(s). 
Assessable unit managers responsible for completing this checklist are 
shown in the DeCA, MCP, DeCA Directive 70-2.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained: Defense Commissary Agency, ATTN: FOIA/
Privacy Officer, 1300 E. Avenue, Fort Lee, VA 23801-1800.
---------------------------------------------------------------------------

    (h) Event cycle 1: Establish and implement a Privacy Act Program.
    (1) Risk: If prescribed policies, procedures and responsibilities of 
the Privacy Act Program are not adhered to, sensitive private 
information on individuals can be given out to individuals.
    (2) Control Objectives: The prescribed policies, procedures and 
responsibilities contained in 5 U.S.C. 552a are followed to protect 
individual privacy and information release.
    (3) Control Techniques: 32 CFR part 310 and DeCA Directive 30-13,\2\ 
Privacy Act Program.
---------------------------------------------------------------------------

    \2\ See footnote 1 to this Appendix B.
---------------------------------------------------------------------------

    (i) Ensure that a PA program is established and implemented.
    (ii) Appoint an individual with PA responsibilities and ensure the 
designation of appropriate staff to assist.
    (4) Test Questions: Explain rationale for YES responses or provide 
cross-references where rationale can be found. For NO responses, cross-
reference to where corrective action plans can be found. If response is 
NA, explain rationale.
    (i) Is a PA program established and implemented in DeCA to encompass 
procedures for subordinate activities? (DeCA HQ/SA, Region IM). 
Response: Yes / No / NA. Remarks:
    (ii) Is an individual appointed PA responsibilities? (DeCA HQ/SA, 
Region IM). Response: Yes / No / NA. Remarks:
    (iii) Are the current names and office telephone numbers furnished 
OSD, Private Act Office of the PA Officer and the IDA? (DeCA HQ/SA). 
Response: Yes / No / NA. Remarks:
    (iv) Is the annual PA report prepared and forwarded to OSD, Defense 
Privacy Office? (DeCA HQ/SA). Response: Yes / No / NA. Remarks:
    (v) Is PA awareness training/orientation provided? Is in-depth 
training provided for personnel involved in the establishment, 
development, custody, maintenance and use of a system of records? (DeCA 
HQ/SA, Region). Response: Yes / No / NA. Remarks:
    (vi) Is the PA Officer consulted by information systems developers 
for privacy requirements which need to be included as part of the life 
cycle management of information consideration in information systems 
design? (DeCA HQ/SA, Region). Response: Yes / No / NA. Remarks:
    (vii) Is each system of records maintained by DeCA supported by a 
Privacy Act System Notice and has the systems notice been published in 
the Federal Register? (DeCA HQ/SA). Response: Yes / No / NA. Remarks:

[[Page 1027]]

    (i) Event cycle 2: Processing PA Requests.
    (1) Risk: Failure to process PA requests correctly could result in 
privacy information being released which subjects the Department of 
Defense, DeCA or individuals to criminal penalties.
    (2) Control Objective: PA requests are processed correctly.
    (3) Control Technique:
    (i) Ensure PA requests are logged into a formal control system.
    (ii) Ensure PA requests are answered promptly and correctly.
    (iii) Ensure DeCA records are only withheld when they fall under the 
general and specific exemptions of 5 U.S.C. 552a and one or more of the 
nine exemptions under DeCA Directive 30-12,\3\ Freedom of Information 
Act (FOIA) Program.
---------------------------------------------------------------------------

    \3\ See footnote 1 to this Appendix B.
---------------------------------------------------------------------------

    (iv) Ensure all requests are coordinated through the General 
Counsel.
    (v) Ensure all requests are denied by the DeCA IDA.
    (vi) Ensure all appeals are forwarded to the Director DeCA or his 
designee.
    (4) Test Questions:
    (i) Are PA requests logged into a formal control system? (DeCA HQ/
SA, Region IM). Response: Yes / No / NA. Remarks:
    (ii) Are individual requests for access acknowledged within 10 
working days after receipt? (DeCA HQ/SA, Region IM). Response: Yes / No 
/ NA. Remarks:
    (iii) when more than 10 working days are required to respond to a PA 
request, is the requester informed, explaining the circumstances for the 
delay and provided an approximate date for completion? (DeCA HQ/SA, 
Region IM). Response: Yes / No / NA. Remarks:
    (iv) Are DeCA records withheld only when they fall under one or more 
of the general or specific exemptions of the PA or one or more of the 
nine exemptions of the FOIA? (DeCA HQ/SA, Region IM). Response: Yes / No 
/ NA. Remarks:
    (v) Do denial letters contain the name and title or position of the 
official who made the determination, cite the exemption(s) on which the 
denial is based and advise the PA requester of their right to appeal the 
denial to the Director DeCA or designee? (DeCA HQ/SA). Response: Yes / 
No / NA. Remarks:
    (vi) Are PA requests denied only by the HQ DeCA IDA? (All). 
Response: Yes / No / NA. Remarks:
    (vii) Is coordination met with the General Counsel prior to 
forwarding a PA request to the IDA? (DeCA HQ/SA). Response: Yes / No / 
NA. Remarks:
    (j) Event cycle 3: Requesting PA Information.
    (1) Risk: Obtaining personal information resulting in a violation of 
the PA.
    (2) Control Objective: Establish a system before data collection and 
storage to ensure no violation of the privacy of individuals.
    (3) Control Technique: Ensure Privacy Act Statement to obtain 
personal information is furnished to individuals before data collection.
    (4) Test Questions:
    (i) Are all forms used to collect information about individuals 
which will be part of a system of records staffed with the PA Officer 
for correctness of the Privacy Act Statement? (DeCA HQ/SA, Region). 
Response: Yes / No / NA. Remarks:
    (ii) Are Privacy Statements prepared and issued for all forms, 
formats and questionnaires that are subject to the PA, coordinated with 
the DeCA forms manager? (DeCA HQ/SA, Region). Response: Yes / No / NA. 
Remarks:
    (iii) Do Privacy Act Statements furnished to individuals provide the 
following:
    (A) The authority for the request.
    (B) The principal purpose for which the information will be used.
    (C) Any routine uses.
    (D) The consequences of failing to provide the requested 
information. Yes / No / NA. Remarks:
    (k) Event cycle 4: Records Maintenance.
    (1) Risk: Unprotected records allowing individuals without a need to 
know access to privacy information.
    (2) Control Objective: PA records are properly maintained throughout 
their life cycle.
    (3) Control Technique: Ensure the prescribed policies and procedures 
are followed during the life cycle of information.
    (4) Test Questions:
    (i) Are file cabinets/containers that house PA records locked at all 
times to prevent unauthorized access? (All). Response: Yes / No / NA. 
Remarks:
    (ii) Are personnel with job requirement (need to know) only allowed 
access to PA information? (All). Response: Yes / No / NA. Remarks:
    (iii) Are privacy act records treated as unclassified records and 
designated `For Official Use Only'? (All). Response: Yes / No / NA. 
Remarks:
    (iv) Are computer printouts that contain privacy act information as 
well as disks, tapes and other media marked `For Official Use Only'? 
(All). Response: Yes / No / NA. Remarks:
    (v) Is a Systems Manager appointed for each automated/manual PA 
systems of records? (DeCA HQ/SA, Region). Response: Yes / No / NA. 
Remarks:
    (vi) Are PA records maintained and disposed of in accordance with 
DeCA Directive

[[Page 1028]]

30-2,\4\ The Defense Commissary Agency Filing System? (All). Response: 
Yes / No / NA. Remarks:
---------------------------------------------------------------------------

    \4\ See footnote 2 to this Appendix B.
---------------------------------------------------------------------------

    (1) I attest that the above listed internal controls provide 
reasonable assurance that DeCA resources are adequately safeguarded. I 
am satisfied that if the above controls are fully operational, the 
internal controls for this sub-task throughout DeCA are adequate.
    Safety, Security and Administration.
    FUNCTIONAL PROPONENT.
    I have reviewed this sub-task within my organization and have 
supplemented the prescribed internal control review checklist when 
warranted by unique environmental circumstances. The controls prescribed 
in this checklist, as amended, are in place and operational for my 
organization (except for the weaknesses described in the attached plan, 
which includes schedules for correcting the weaknesses).
    ASSESSABLE UNIT MANAGER (Signature).

            Appendix C to Part 327-DeCA Blanket Routine Uses

    (a) Routine Use--Law Enforcement. If a system of records maintained 
by a DoD Component, to carry out its functions, indicates a violation or 
potential violation of law, whether civil, criminal, or regulatory in 
nature, and whether arising by general statute or by regulation, rule, 
or order issued pursuant thereto, the relevant records in the system of 
records may be referred, as a routine use, the agency concerned, whether 
Federal, State, local, or foreign, charged with the responsibility of 
investigating or prosecuting such violation or charged with enforcing or 
implementing the statute, rule, regulation, or order issued pursuant 
thereto.
    (b) Routine Use--Disclosure when Requesting Information. A record 
from a system of records maintained by a Component may be disclosed as a 
routine use to a Federal, State, or local agency maintaining civil, 
criminal, or other relevant enforcement information or other pertinent 
information, such as current licenses, if necessary to obtain 
information relevant to a Component decision concerning the hiring or 
retention of an employee, the issuance of a security clearance, the 
letting of a contract, or the issuance of a license, grant, or other 
benefit.
    (c) Routine Use--Disclosure of Requested Information. A record from 
a system of records maintained by a Component may be disclosed to a 
Federal agency, in response to its request, in connection with the 
hiring or retention of an employee, the issuance of a security 
clearance, the reporting of an investigation of an employee, the letting 
of a contract, or the issuance of a license, grant, or other benefit by 
the requesting agency, to the extent that the information is relevant 
and necessary to the requesting agency's decision on the matter.
    (d) Routine Use--Congressional Inquiries. Disclosure from a system 
of records maintained by a Component may be made to a congressional 
office from the record of an individual in response to an inquiry from 
the congressional office made at the request of that individual.
    (e) Routine Use--Private Relief Legislation. Relevant information 
contained in all systems of records of the Department of Defense 
published on or before August 22, 1975, will be disclosed to the OMB in 
connection with the review of private relief legislation as set forth in 
OMB Circular A-19 at any stage of the legislative coordination and 
clearance process as set forth in that Circular.
    (f) Routine Use--Disclosures Required by International Agreements. A 
record from a system of records maintained by a Component may be 
disclosed to foreign law enforcement, security, investigatory, or 
administrative authorities to comply with requirements imposed by, or to 
claim rights conferred in, international agreements and arrangements 
including those regulating the stationing and status in foreign 
countries of DoD military and civilian personnel.
    (g) Routine Use--Disclosure to State and Local Taxing Authorities. 
Any information normally contained in Internal Revenue Service (IRS) 
Form W-2 which is maintained in a record from a system of records 
maintained by a Component may be disclosed to State and local taxing 
authorities with which the Secretary of the Treasury has entered into 
agreements under 5 U.S.C., 5516, 5517, and 5520 and only to those State 
and local taxing authorities for which an employee or military member is 
or was subject to tax regardless of whether tax is or was withheld. This 
routine use is in accordance with Treasury Fiscal Requirements Manual 
Bulletin No. 76-07.
    (h) Routine Use--Disclosure to the Office of Personnel Management. A 
record from a system of records subject to the Privacy Act and 
maintained by a Component may be disclosed to the Office of Personnel 
Management (OPM) concerning information on pay and leave, benefits, 
retirement deduction, and any other information necessary for the OPM to 
carry out its legally authorized government-wide personnel management 
functions and studies.
    (i) Routine Use--Disclosure to the Department of Justice for 
Litigation. A record from a system of records maintained by this 
component may be disclosed as a routine use to any component of the 
Department of Justice for the purpose of representing the Department of 
Defense, or any officer, employee or member of the Department in pending 
or potential litigation to which the record is pertinent.

[[Page 1029]]

    (j) Routine Use--Disclosure to Military Banking Facilities Overseas. 
Information as to current military addresses and assignments may be 
provided to military banking facilities who provide banking services 
overseas and who are reimbursed by the Government for certain checking 
and loan losses. For personnel separated, discharged, or retired from 
the Armed Forces, information as to last known residential or home of 
record address may be provided to the military banking facility upon 
certification by a banking facility officer that the facility has a 
returned or dishonored check negotiated by the individual or the 
individual has defaulted on a loan and that if restitution is not made 
by the individual, the U.S. Government will be liable for the losses the 
facility may incur.
    (k) Routine Use--Disclosure of Information to the General Services 
Administration (GSA). A record from a system of records maintained by 
this component may be disclosed as a routine use to the General Services 
Administration (GSA) for the purpose of records management inspections 
conducted under authority of 44 U.S.C. 2904 and 2906.
    (l) Routine Use--Disclosure of Information to the National Archives 
and Records Administration (NARA). A record from a system of records 
maintained by this component may be disclosed as a routine use to the 
National Archives and Records Administration (NARA) for the purpose of 
records management inspections conducted under authority of 44 U.S.C. 
2904 and 2906.
    (m) Routine Use--Disclosure to the Merit Systems Protection Board. A 
record from a system of records maintained by this component may be 
disclosed as a routine use to the Merit Systems Protection Board, 
including the Office of the Special Counsel for the purpose of 
litigation, including administrative proceedings, appeals, special 
studies of the civil service and other merit systems, review of OPM or 
component rules and regulations, investigation of alleged or possible 
prohibited personnel practices; including administrative proceedings 
involving any individual subject of a DoD investigation, and such other 
functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be 
authorized by law.
    (n) Routine Use--Counterintelligence Purpose. A record from a system 
of records maintained by this component may be disclosed as a routine 
use outside the DoD or the U.S. Government for the purpose of 
counterintelligence activities authorized by U.S. Law or Executive Order 
or for the purpose of enforcing laws which protect the national security 
of the United States.

[[Page 1030]]



                 SUBCHAPTER P_OBTAINING DOD INFORMATION





PART 336_PUBLICATIONS OF PROPOSED AND ADOPTED REGULATIONS AFFECTING 
THE PUBLIC--Table of Contents




Sec.
336.1 Purpose.
336.2 Applicability and scope.
336.3 Policy.
336.4 Proposed regulations.
336.5 Publication in the Federal Register of adopted regulations and 
          other matters.
336.6 Petitions.
336.7 Effective date and implementation.

    Authority: 10 U.S.C. 125.



Sec. 336.1  Purpose.

    This part:
    (a) Establishes a policy and procedure by which the Department of 
Defense will invite the comments of the public on those of its proposed 
regulations and other types of rulemaking as described hereafter which 
originate within the Department of Defense as a requirement of general 
applicability and future effect designed to implement, interpret, or 
prescribe law or policy, or practice or procedure requirements of a 
component. This requirement applies to those regulations which 
constitute the authority for actions having a substantial and direct 
impact on the public when consistent with other responsibilities of the 
Department for the efficient and responsible conduct of public business.
    (b) Implements the provisions of 5 U.S.C. 552 relating to the kinds 
of regulations that must be published in the Federal Register after they 
are adopted.

[40 FR 4911, Feb. 3, 1975. Redesignated at 56 FR 64482, Dec. 10, 1991]



Sec. 336.2  Applicability and scope.

    (a) The provisions of this part apply to the Office of the Secretary 
of Defense, the Military Departments, the Organization of the Joint 
Chiefs of Staff, and the Defense Agencies (hereinafter referred to 
singularly as a ``DoD component'' or collectively as ``DoD 
components'').
    (b) These provisions are applicable to those directives, 
instructions, regulations, policy memoranda, manuals, and other forms of 
rulemaking (hereinafter referred to as ``regulations'') that have a 
substantial and direct impact on the public. Only a regulation which 
must be published in the Federal Register after its adoption in 
accordance with 5 U.S.C. 552 (as implemented in Sec. 336.5) comes 
within the requirement that it be evaluated to determine whether it will 
have the substantial and direct impact on the public that warrants an 
invitation for public comment prior to its adoption. An implementation 
by a subordinate component of a regulation adopted by a component at a 
higher level within the Department of Defense is not deemed to 
``originate'' a requirement of general applicability and future effect, 
and therefore, does not fall within the scope of the obligation to 
invite public comment on its provisions.
    (c) The determination by the component originating a regulation 
shall be final and conclusive in determining whether a regulation or a 
proposed regulation comes within the purview of this part. Consideration 
shall be given, however, to the definition of ``rulemaking'' found in 5 
U.S.C. 551 as it relates to the requirements of 5 U.S.C. 553 in making 
this determination.
    (d) The requirement for inviting public comment on a proposed 
regulation shall not be deemed applicable to any proposed regulation 
coming within one or more of the following exemptions or exceptions to 
the rulemaking procedures set forth in 5 U.S.C. 553.
    (1) Any matter pertaining to a military or foreign affairs function 
of the United States which has been determined under the criteria of an 
Executive Order or statute to require a security classification in the 
interests of national defense or foreign policy.
    (2) Any matter relating to (i) agency management, (ii) agency 
personnel, or (iii) public contracts (e.g., the Armed Services 
Procurement Regulation), including nonappropriated fund contracts.
    (3) Any matter involving (i) interpretative rules, (ii) general 
statements of

[[Page 1031]]

policy, or (iii) rules of agency organization, procedure, or practice.
    (4) Any situation in which the DoD Component for good cause finds 
that inviting public comment on a proposed regulation is (i) 
impracticable, (ii) unnecessary, or (iii) contrary to the public 
interest, and incorporates in the adopted regulation that determination 
and its basis.
    (e) Exceptions to the requirement in 5 U.S.C. 552 for publication in 
the Federal Register of adopted regulations for the guidance of the 
public shall be made in accordance with guidance provided in 32 CFR 
286.8.

[40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976, 
and further redesignated and amended at 56 FR 64482, Dec. 10, 1991]



Sec. 336.3  Policy.

    (a) It is the policy of the Department of Defense to encourage the 
maximum practicable participation of the public in the formulation of 
regulations having a substantial and direct impact on the public, and to 
inform the public fully through publication in the Federal Register of 
all adopted regulations intended for public guidance.
    (b) A proposed regulation which would originate a Department of 
Defense policy having a substantial and direct impact on the public 
should be published, along with a notice of purpose and authority, in 
the Federal Register in order to invite public comment within a 
designated time at least 30 days prior to its intended adoption. This 
policy should be followed even though the proposed regulation may come 
within one or more of the exceptions or exemptions to the requirement 
for prepublication of proposed rules described in Sec. 336.2(d) (2) (i) 
and (ii), (3) and (4), unless it is determined by the DoD Component as a 
matter within its sole and exclusive prerogative that the employment of 
the exception or exemption is appropriate to satisfy a significant and 
legitimate interest of the DoD Component or the public.
    (c) After their adoption, all regulations for the guidance of the 
public shall be published in the Federal Register in accordance with 5 
U.S.C. 552, even though they may come within one or more of the 
exemptions described in 32 CFR 286.6. If no significant and legitimate 
interest of the DoD Component or public precludes such publication. This 
policy extends to some adopted regulations for the guidance of the 
public which were not the subject of notice and public comment.

[40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976, 
and further redesignated and amended at 56 FR 64482, Dec. 10, 1991]



Sec. 336.4  Proposed regulations.

    (a) The general notice of a proposed regulation shall be published 
in the Federal Register in accordance with the guidance contained in the 
``Federal Register Handbook on Document Drafting'' (GSA), whenever that 
regulation would have a substantial and direct impact on the public or 
any significant portion of the public, unless it comes within one or 
more of the exceptions or exemptions previously set forth in Sec. 
336.2(d).
    (b) The notice shall include:
    (1) A statement of the purpose and objective of the proposed 
regulation;
    (2) Reference to the legal authority under which the regulation is 
proposed; and
    (3) The terms or substance of the proposed regulation.
    (c) Whenever the originating DoD Component finds that notice and 
prepublication of a proposed regulation for public comment are 
impracticable, unnecessary, or contrary to the public interest, it shall 
incorporate that finding and a brief statement of its reasons in the 
adopted regulation, or it may adopt and publish in the Federal Register 
a separate regulation excepting or exempting categories of regulations 
for any of these reasons, with an explanation of the basis for excepting 
or exempting each particular category. Separate regulations for this 
purpose shall be promulgated by the procedures for proposed rules 
whenever this falls within the requirements of paragraph (a) of this 
section.
    (d) Following the publication of notice and the proposed regulation 
in the Federal Register, the DoD Component shall give all interested 
persons an opportunity to participate in the rulemaking through the 
submission of written data, views, or arguments. An

[[Page 1032]]

opportunity for oral presentation will normally not be provided, but may 
as a matter within the sole and exclusive prerogative of the component 
be extended where it is found to be in the interest of the DoD Component 
or the public. After careful consideration of all relevant matter 
presented, the component shall incorporate in the adopted regulation a 
concise general statement of its basis and purpose. A preamble to the 
adopted regulation may be published in the Federal Register to explain 
the relationship of the adopted rule to the proposed rule, including the 
nature and effect of public comments.

[40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976, 
and further redesignated and amended at 56 FR 64482, Dec. 10, 1991]



Sec. 336.5  Publication in the Federal Register of adopted regulations 
and other matters.

    Subject to the exemptions set forth in 32 CFR 286.6:
    (a) Each DoD Component shall publish in the Federal Register an 
informative, current description for the guidance of the public, of 
where, how, and by what authority it performs any of its functions. In 
deciding which information to publish in the Federal Register a DoD 
Component shall consider the fundamental objective of informing all 
interested persons of how to deal effectively with the component.
    (b) Information to be published in the Federal Register shall 
include:
    (1) Descriptions of the central and field organization of the 
component concerned, and the established places at which, the employees 
or members of the armed forces from whom, and the methods whereby the 
public may secure information, make submittals or requests, or obtain 
decisions.
    (2) The procedures by which a DoD Component conducts its business 
with the public, both formally and informally.
    (3) The rules of procedure which must be followed, the description 
of forms which must be completed, or the source from which forms may be 
obtained, and instructions on the scope and content of papers, reports, 
examinations required to be submitted pursuant to such rules of 
procedures, as adopted by the component.
    (4) Directives, instructions, regulations, manuals, policy 
memorandums, statements of general policy, or interpretation of general 
applicability adopted by the agency, and other substantive rules of 
general applicability affecting the public.
    (c) With the approval of the Director of the Federal Register, the 
requirement for publication in the Federal Register (1 CFR part 51, 37 
FR 23614, Nov. 4, 1972) may be satisfied by reference in the Federal 
Register to other publications reasonably available to the class of 
persons affected and containing the information which must otherwise be 
published in the Federal Register.
    (1) In order to be eligible for incorporation by reference, the 
matter must be in the nature of published data, criteria, standards, 
specifications, techniques, illustrations, or other published 
information reasonably available to members of class affected thereby.
    (2) Incorporation by reference is not acceptable as a complete 
substitute for promulgating in full text material required to be 
published by 5 U.S.C. 552.
    (3) Incorporation by reference is acceptable as a means of avoiding 
unnecessary repetition within the promulgated document of published 
information already reasonably available to the class affected. Examples 
include:
    (i) Construction standards promulgated by a professional association 
or architects, engineers, or builders.
    (ii) Code of ethics promulgated by professional organizations.
    (iii) Forms and formats publicly or privately published and readily 
available to the persons required to use them.
    (d) It is incumbent upon each component to review all information of 
the type described in paragraph (b) of this section, to insure that it 
is published on an up-to-date basis in the Federal Register, including 
every amendment revision, or repeal. No member of the general public can 
be required to resort to, or be adversely affected by, any material not 
published as required by the foregoing provisions of Sec. 336.5 unless 
he

[[Page 1033]]

has actual and timely notice of the content of that material.

[40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976, 
and further redesignated and amended at 56 FR 64482, Dec. 10, 1991]



Sec. 336.6  Petitions.

    Each component shall accord any interested person the right to 
petition for the issuance, amendment, or repeal of a regulation that 
originates or would originate, for the Department of Defense or that 
component, a policy, requirement, or procedure coming within the scope 
of Sec. 336.4. Any such petition shall be given full and prompt 
consideration by the component charged with the responsibility for 
issuing such a regulation. The petitioner shall be advised in writing of 
the disposition, and the reason for the disposition, of any written 
petition for the issuance, amendment, or repeal of a regulation. The 
official responsibility for disposition of the petition may at his 
absolute discretion, grant the petitioner a right to appear for the 
purpose of supporting his petition if this is compatible with the 
orderly conduct of public business.

[40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976, 
and further redesignated and amended at 56 FR 64482, Dec. 10, 1991]



Sec. 336.7  Effective date and implementation.

    This part becomes effective on February 1, 1975, but is applicable 
only to the regulations promulgated under the authority of a component 
after April 1, 1975. Two copies of implementing regulations shall be 
forwarded to the General Counsel of the Department of Defense on or 
before April 1, 1975.

[40 FR 4911, Feb. 3, 1975. Redesignated at 41 FR 27074, July 1, 1976, 
and further redesignated at 56 FR 64482, Dec. 10, 1991]



PART 337_AVAILABILITY OF DoD DIRECTIVES, DoD INSTRUCTIONS, DoD 
PUBLICATIONS, AND CHANGES--Table of Contents




Sec.
337.1 Ordering DoD Directives, DoD Instructions, and Changes.
337.2 Ordering DoD Publications.

    Authority: 10 U.S.C. 133, 31 U.S.C. 483a.



Sec. 337.1  Ordering DoD Directives, DoD Instructions, and Changes.

    DoD Directives, DoD Instructions, and changes published in Chapter 
2--Number Index section of DoD 5025.1-I, ``DoD Directives System Annual 
Index'' (except those issuances identified as classified) are available 
to the public and Government Agencies, at cost, from the National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161, telephone 703-487-4650.

[55 FR 27225, July 2, 1990. Redesignated and amended at 56 FR 64482, 
Dec. 10, 1991]



Sec. 337.2  Ordering DoD Publications.

    DoD publications and changes published in Chapter 3--Publications 
section of DoD 5025.1-l, ``DoD Directives System Annual Index'' are 
available from the various sources that are identified in the 
Availability Column. Addresses for forwarding written requests to the 
various sources are listed at the beginning of chapter 3. A fee will be 
charged for DoD Publications ordered from the National Technical 
Information Service.

[56 FR 64482, Dec. 10, 1991]



PART 338_AVAILABILITY TO THE PUBLIC OF DEFENSE NUCLEAR AGENCY (DNA) 
INSTRUCTIONS AND CHANGES THERETO--Table of Contents




    Authority: 10 U.S.C. 133, 5 U.S.C. 552.



Sec. 338.1  Ordering DNA issuances.

    (a) The DNA issuances published in the DNA indexes are published 
under the following subject groups:

1000--Manpower, Personnel and Reserve
2000--International Programs
3000--Intelligence
4000--Logistics and Resources Management
5000--General Administration
6000--Health and Medical
7000--Comptrollership
DNA Instruction 5025.80, Index to Administrative Publications
AFRRI Instruction 5025.26N, Index to AFRRI Publications
FC, DNA Instruction 5025.8B, Index to FC, DNA Administrative Instruction


[[Page 1034]]


    (b) Copies of DNA indexes and instructions may be ordered by 
telephone or letter. The commercial telephone number is (703) 325-7095. 
Include personal or company name, street address or post office box, 
city, state, country (if applicable) and zip code when submitting 
requests. Submit written requests to: Defense Nuclear Agency, Public 
Affairs Office, Washington, DC 20305-1000.
    (c) This service is provided to the public and to federal agencies 
other than the Department of Defense. DNA does not charge for requests 
for an index and one instruction; however, fees for larger orders are 
determined on a case-by-case basis.

[51 FR 41300, Nov. 14, 1986. Redesignated at 56 FR 64482, Dec. 10, 1991]



                         SUBCHAPTER Q [RESERVED]



[[Page 1035]]



                  SUBCHAPTER R_ORGANIZATIONAL CHARTERS





PART 343_UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND READINESS (USD(P&R))
--Table of Contents




Sec.
343.1 Purpose.
343.2 Applicability.
343.3 Definitions.
343.4 Responsibilities and functions.
343.5 Relationships.
343.6 Authorities.

Appendix A to Part 343--Delegations of Authority

    Authority: 10 U.S.C. 136.

    Source: 59 FR 14561, Mar. 29, 1994, unless otherwise noted.



Sec. 343.1  Purpose.

    Under the authority vested in the Secretary of Defense by 10 U.S.C. 
113 and 136, this part establishes the position of USD(P&R), with the 
responsibilities, functions, relationships, and authorities as 
prescribed herein. The functions previously assigned to the Assistant 
Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) by DoD 
Directive 5124.2,\1\ ``Assistant Secretary of Defense (Force Management 
and Personnel),'' January 26, 1990, are incorporated herein and the 
ASD(FM&P) is hereby disestablished.
---------------------------------------------------------------------------

    \1\ Copies of the canceled Directive may be obtained from the 
Directives Division, Attn: Room 2A286, Washington Headquarters Services, 
1155 Defense Pentagon, Washington, DC 20301-1155.
---------------------------------------------------------------------------



Sec. 343.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Unified Combatant Commands, the Inspector General of the Department of 
Defense, the Defense agencies, and the DoD Field Activities (hereafter 
referred to collectively as ``the DoD Components'').



Sec. 343.3  Definitions.

    (a) Reserve components. Refers collectively to the Army National 
Guard of the United States, Army Reserve, Naval Reserve, Marine Corps 
Reserve, Air National Guard of the United States, Air Force Reserve, and 
Coast Guard Reserve, when the Coast Guard is operating as a Service of 
the Department of the Navy.
    (b) Total force. The organizations, units, and individuals that 
comprise the Defense Department's resources for meeting the national 
security strategy. It includes DoD Active and Reserve military 
personnel, military retired members, DoD civilian personnel (including 
foreign national direct- and indirect-hire, as well as non-appropriated 
fund employees), contractor staff, and host-nation support personnel.



Sec. 343.4  Responsibilities and functions.

    The Under Secretary of Defense for Personnel and Readiness is the 
principal staff assistant and advisor to the Secretary and Deputy 
Secretary of Defense for Total Force management as it relates to 
readiness; National Guard and Reserve component affairs; health affairs; 
training; and personnel requirements and management, including equal 
opportunity, morale, welfare, and quality of life matters. In this 
capacity, the USD(P&R) shall:
    (a) Develop policies, plans, and programs for:
    (1) Total force personnel and their allocation among DoD Components 
and between the active and reserve components to ensure efficient and 
effective support of wartime and peacetime operations, contingency 
planning, and preparedness.
    (2) Reserve component affairs to promote the effective integration 
of Reserve component capabilities into a cohesive total force.
    (3) Health and medical affairs sufficient to provide, and maintain 
readiness to provide, medical services and support to members of the 
Armed Forces during military operations, and to provide medical services 
and support to members of the Armed Forces, their dependents, and others 
entitled to DoD medical care.
    (4) Recruitment, training, equal opportunity, compensation, 
recognition, discipline, and separation of all DoD

[[Page 1036]]

personnel, to include both military (active, reserve, and retired) and 
civilian.
    (5) The quality of life of DoD personnel and their dependents, 
including family support, allowances, transition assistance, community 
services, and dependent education.
    (6) DoD morale, welfare, and recreation programs and supporting non-
appropriated fund revenue-generating programs including commissaries and 
exchanges.
    (7) Interagency and intergovernmental activities, special projects, 
or external requests that create a demand for DoD personnel resources.
    (b) Serve as OSD focal point for readiness issues; develop policies, 
management structures, and administrative processes to ensure forces 
have sufficient readiness to execute the National Military Strategy; 
oversee Total Force personnel and medical readiness; and coordinate with 
other Principal Staff Assistants and cognizant officials in the Office 
of the Chairman of the Joint Chiefs of Staff and in the Services on 
other aspects of readiness.
    (c) Analyze the total force structure as related to quantitative and 
qualitative military and civilian personnel requirements, utilization, 
readiness and support. Administer and implement controls on military and 
civilian personnel strengths for Military Departments, Defense Agencies, 
and other DoD Components.
    (d) Review and evaluate the requirements of the Defense Acquisition 
Board's major defense acquisition programs and proposed weapon systems 
for personnel, training, and readiness implications, and the 
implications of weapon systems maintainability for qualitative and 
quantitative personnel requirements and for readiness.
    (e) Formulate policy for and ensure coordination of DoD Noncombatant 
Evacuation Operations (NEO).
    (f) Participate in those planning, programming, and budgeting 
activities that relate to assigned areas of responsibility.
    (g) Serve on boards, committees, and other groups pertaining to 
assigned functional areas and represent the Secretary of Defense on 
personnel, readiness, Reserve component, health, and compensation 
matters outside of the Department.
    (h) Perform such other functions as the Secretary of Defense may 
prescribe.



Sec. 343.5  Relationships.

    (a) In the performance of assigned functions and responsibilities, 
the USD(P&R) shall:
    (1) Report directly to the Secretary and Deputy Secretary of 
Defense.
    (2) Exercise authority, direction, and control over:
    (i) The Assistant Secretary of Defense for Health Affairs.
    (ii) The Assistant Secretary of Defense for Reserve Affairs.
    (iii) The Director, Defense Commissary Agency.
    (iv) The Director, DoD Education Activity.
    (v) The Director, Defense Manpower Data Center.
    (vi) The Director, DoD Civilian Personnel Management Service.
    (vii) The Director, Defense Institute for Training Resources 
Analysis.
    (viii) The Commandant of the Defense Equal Opportunity Management 
Institute.
    (ix) The Director, Defense Medical Programs Activity, through the 
Assistant Secretary of Defense for Health Affairs (ASD(HA)).
    (x) The Director, Office of Civilian Health and Medical Programs of 
the Uniformed Services, through the ASD(HA).
    (xi) The President, Uniformed Services University of the Health 
Sciences (USUHS), through the ASD(HA), pursuant to the authority vested 
in the Secretary of Defense by 10 U.S.C. chapter 104, except that the 
authority to appoint the President, USUHS, is reserved to the Secretary 
of Defense.
    (xii) such other subordinate officials as may be assigned.
    (3) Provide policy guidance and management supervision for the DoD 
Office of the Actuary, DoD Office of Special Events, U.S. Military 
Entrance Processing Command, Defense Activity for Non-Traditional 
Education Support, and the Armed Forces Professional Entertainment 
Program.
    (4) Coordinate and exchange information with other OSD officials, 
Heads of

[[Page 1037]]

the DoD Components, and Federal officials having collateral or related 
functions.
    (5) Use existing facilities and services of the Department of 
Defense and other Federal Agencies, whenever practicable, to avoid 
duplication and to achieve maximum efficiency and economy.
    (b) Other OSD officials and the Heads of the DoD Components shall 
coordinate with the USD(P&R) on all matters related to the 
responsibilities and functions cited in Sec. 343.4.



Sec. 343.6  Authorities.

    (a) The USD(P&R) is hereby delegated authority to:
    (1) Establish and allocate civilian personnel authorizations of the 
DoD Components and review and approve military and civilian personnel 
authorization changes during program execution.
    (2) Issue DoD Instructions, DoD publications, and one-time 
directive-type memoranda, consistent with DoD 5025.1-M,\2\ that 
implement policy approved by the Secretary of Defense in assigned fields 
of responsibility. Instructions to the Military Department shall be 
issued through the Secretaries of those Departments. Instructions to 
Unified Combatant Commands shall be communicated through the Chairman of 
the Joint Chiefs of Staff.
---------------------------------------------------------------------------

    \2\ Copies may be obtained, at cost, from the National Technical 
Information Service (NTIS), US Department of Commerce, 5285 Port Royal 
Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (3) Obtain reports, information, advice, and assistance, consistent 
with DoD Directive 8910.1,\3\ as necessary to carry out assigned 
functions.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 343.6(a)(2).
---------------------------------------------------------------------------

    (4) Communicate directly with the Heads of DoD Components. 
Communications to the Commanders of the Unified Combatant Commands shall 
be transmitted through the Chairman of the Joint Chiefs of Staff.
    (5) Communicate with other Government officials, representatives of 
the legislative branch, members of the public, and representatives of 
foreign governments, as appropriate, in carrying out assigned functions.
    (b) Other authorities specifically delegated by the Secretary of 
Defense are in appendix A to this part.

            Appendix A to Part 343--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to the authority, direction, and control of the Secretary of 
Defense, and in accordance with DoD policies, Directives, and 
Instructions, the USD(P&R) is hereby delegated authority to:
    (a) Act for the Secretary of Defense in conducting a review of the 
military compensation system.
    (b) Issue DoD issuances pertaining to the management of commissioned 
officers that are required to be issued by the Secretary of Defense 
under pertinent sections of 10 U.S.C., including those added by Public 
Law 96-513, ``Defense Officer Personnel Management Act,'' December 12, 
1980, as amended by Public Law 77-22, ``Defense Office Personnel 
Management Act Technical Corrections Act,'' July 10, 1981, except when 
such delegation is specifically prohibited.
    (c) Act for the Secretary of Defense to approve or disapprove 
recommendations for the Secretary of Defense Award for Productivity 
Excellence.
    (d) Act for the Secretary of Defense to review and approve 
procedures established by the Secretaries of the Military Departments 
for the correction of military records under the authority of 10 U.S.C. 
1552.

The USD(P&R) may redelegate these authorities, as appropriate, and in 
writing, except as otherwise provided by law or regulations. These 
delegations of authority are effective March 29, 1994.



PART 344_ASSISTANT SECRETARY OF DEFENSE FOR RESERVE AFFAIRS (ASD(RA))
--Table of Contents




Sec.
344.1 Purpose.
344.2 Applicability.
344.3 Definitions.
344.4 Responsibilities and functions.
344.5 Relationships.
344.6 Authorities.

    Authority: 10 U.S.C. 136.

    Source: 59 FR 14563, Mar. 29, 1994, unless otherwise noted.



Sec. 344.1  Purpose.

    Under the authority vested in the Secretary of Defense by 10 U.S.C. 
113 and 138, this part updates the responsibilities, functions, 
relationships, and

[[Page 1038]]

authorities of the ASD(RA), as prescribed herein.



Sec. 344.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Unified Combatant Commands, the Inspector General of the Department of 
Defense, the Defense Agencies, and the DoD Field Activities (hereafter 
referred to collectively as ``the DoD Components'').



Sec. 344.3  Definitions.

    (a) Reserve components. Refers collectively to the Army National 
Guard of the United States, Army Reserve, Naval Reserve, Marine Corps 
Reserve, Air National Guard of the United States, Air Force Reserve, and 
Coast Guard Reserve, when the Coast is operating as a Service of the 
Department of the Navy.
    (b) Total force. The organizations, units, and individuals that 
comprise the Defense Department's resources for meeting the national 
security strategy. It includes DoD Active and Reserve military 
personnel, military retired members, DoD civilian personnel (including 
foreign national direct- and indirect-hire, as well as non-appropriated 
fund employees), contractor staff, and host-nation support personnel.



Sec. 344.4  Responsibilities and functions.

    The Assistant Secretary of Defense for Reserve Affairs is the 
principal staff assistant and advisor to the Under Secretary of Defense 
for Personnel and Readiness (USD(P&R)) and the Secretary and Deputy 
Secretary of Defense for Reserve component matters in the Department of 
Defense. The ASD(RA) is responsible for overall supervision of all 
Reserve component affairs in the Department of Defense. In this 
capacity, the ASD(RA) shall:
    (a) Develop policies, conduct analyses, provide advice, and make 
recommendations to the USD(P&R) and the Secretary of Defense, and issue 
guidance to the DoD Components on matters pertaining to the Reserve 
components.
    (b) Develop systems and standards for the administration and 
management of approved DoD Reserve component plans and programs.
    (c) Develop and promulgate plans, programs, actions, and taskings to 
ensure adherence to DoD policies and national security objectives to 
promote the effective integration of Reserve component capabilities into 
a cohesive total force.
    (d) Review and evaluate programs of the DoD Components that impact 
on the reserve components; monitor the activities of reserve component 
organizations, training facilities, and associations; and undertake 
other management oversight activities as may be required to ensure that 
policies, plans, programs, and actions pertaining to the reserve 
components:
    (1) Adhere to approved DoD policies and standards.
    (2) Are compatible and support total force objectives and 
requirements.
    (3) Enhance the readiness and capabilities of reserve component 
units and personnel.
    (4) Promote the integration of reserve components with active duty 
forces.
    (5) Make the most effective use of reserve components within the 
total force.
    (e) Participate in planning, programming, and budgeting activities 
that relate to assigned areas of responsibility.
    (f) Promote, with respect to the reserve components, coordination, 
cooperation, and mutual understanding within the Department of Defense 
and among the Department of Defense and other federal agencies, state 
and local governments, the civilian community at large, and the 
employers of Reserve component personnel.
    (g) Promote family support plans, policies, and programs in line 
with the reserve component mission.
    (h) Serve on boards, committees, and other groups pertaining to 
assigned functional areas and represent the Secretary of Defense on 
reserve component matters outside the Department.
    (i) Consistent with 10 U.S.C. 675, coordinate issues and positions 
of the Reserve Force Policy Board (RFPB) and review reports of the RFPB 
prior to forwarding to the USD(P&R) and the Secretary of Defense. 
Provide administrative staff support to the RFPB.

[[Page 1039]]

    (j) Serve as the vice chairman of the Conventional Forces Readiness 
Committee.
    (k) Perform such other functions as the USD(P&R) and the Secretary 
of Defense may prescribe.



Sec. 344.5  Relationships.

    (a) In the performance of assigned functions and responsibilities, 
the ASD(RA) shall serve under the authority, direction, and control of 
the USD(P&R) and shall:
    (1) Report directly to the USD(P&R).
    (2) Exercise authority, direction, and control over the National 
Committee for Employer Support of the Guard and Reserve.
    (3) Coordinate and exchange information with the OSD officials, Head 
of the DoD components, and Federal officials having collateral or 
related functions.
    (4) Use existing facilities and services of the Department of 
Defense or other Federal Agencies, whenever practicable, to avoid 
duplication and to achieve maximum efficiency and economy.
    (b) Other OSD officials and the Heads of the DoD components shall 
coordinate with the ASD(RA) on all matters related to the 
responsibilities and functions cited in Sec. 344.4.



Sec. 344.6  Authorities.

    The ASD(RA) is hereby delegated authority to:
    (a) Act for the Secretary of Defense, in accordance with section 411 
of Pub. L. 103-160 and future authorization acts that contain this 
provision, to increase the authorized end strength for Reserve personnel 
by not more than 2 percent of the prescribed Reserve personnel end 
strength, or such other percentage as shall be authorized by statute, 
when the increase is in the national interest.
    (b) Issue DoD Instructions, DoD publications, and one-time 
directive-type memoranda, consistent with DoD 5025.1-M,\1\ that 
implement policies approved by the Secretary of Defense in assigned 
fields of responsibility. Instructions to the Military Departments shall 
be issued through the Secretaries of those Departments. Instructions to 
the Commanders of the Unified Combatant Commands shall be communicated 
through the Chairman of the Joint Chiefs of Staff.
---------------------------------------------------------------------------

    \1\ Copies may obtained, at cost, from the National Technical 
Information Service (NTIS), US Department of Commerce, 5285 Port Royal 
Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (c) Obtain reports, information, advice, and assistance, consistent 
with DoD Directive 8910.1,\2\ as necessary, to carry out assigned 
functions.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 344.6(b).
---------------------------------------------------------------------------

    (d) Communicate directly with Heads of the DoD Components. 
Communications to the Unified Combatant Commands shall be transmitted 
through the Chairman of the Joint Chiefs of Staff.
    (e) Communicate with other Government officials, representatives of 
the legislative branch, members of the public, and representatives of 
foreign governments, as appropriate, in carrying out assigned functions.



PART 345_DEPARTMENT OF DEFENSE SECTION 6 SCHOOLS--Table of Contents




Sec.
345.1 Purpose.
345.2 Applicability and scope.
345.3 Mission.
345.4 Organization.
345.5 Responsibilities and functions.
345.6 Relationships.
345.7 Authorities.
345.8 Administration.

Appendix A to Part 345--Delegations of Authority

    Authority: 20 U.S.C. 2362.

    Source: 57 FR 53557, Nov. 12, 1992, unless otherwise noted.



Sec. 345.1  Purpose.

    This part, pursuant to the authority vested in the Secretary of 
Defense under 20 U.S.C. 2362, establishes the Department of Defense 
(DoD) section 6 Schools with the mission, organization, 
responsibilities, functions, relationships, and authorities as 
prescribed herein.



Sec. 345.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Defense Agencies,

[[Page 1040]]

and the DoD Field Activities, (hereafter referred to collectively as 
``the DoD Components'').
    (b) The schools (pre-kindergarten through grade 12) operated by the 
Department of Defense within the Continental United States (CONUS), 
Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the 
Northern Mariana Islands, and the Virgin Islands.



Sec. 345.3  Mission.

    The mission of the DoD section 6 Schools is to provide a free public 
education of high quality from pre-kindergarten through grade twelve for 
eligible dependent children of U.S. military personnel and federally 
employed civilian personnel, when those children are eligible for an 
education in DoD section 6 Schools under 20 U.S.C. 2362, 20 U.S.C. 241 
note, 32 CFR part 68, and 20 U.S.C. 1400 et. seq., to provide a free, 
appropriate education for dependents with disabilities, ages 3 through 
21.



Sec. 345.4  Organization.

    The DoD section 6 Schools Office is established as an organizational 
element of the DoD Education Activity (DoDEA), a DoD Field Activity 
operating under the direction, authority, and control of the Assistant 
Secretary of Defense (Force Management and Personnel) (ASD(FM&P)). It 
shall consist of a Director and such subordinate organizational 
structures and activities as shall be established by the Director, DoD 
section 6 Schools, with the resources authorized by the ASD(FM&P).



Sec. 345.5  Responsibilities and functions.

    (a) The Director, DoD section 6 Schools, shall perform all of the 
duties necessary to organize, manage, fund, direct, and supervise the 
complete operation of the DoD section 6 Schools. These duties include, 
but are not limited to, the following:
    (1) Serve as the principal advisor and staff assistant to the 
ASD(FM&P) on matters relating to the DoD section 6 Schools.
    (2) Ensure the development of policies and procedures for the 
operation, management, budgeting (in accordance with guidance provided 
by the Comptroller, Department of Defense), construction, and financing 
of DoD section 6 Schools and for DoD section 6 Special Arrangements (as 
defined in 32 CFR part 68 for eligible dependent children in CONUS, 
Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the 
Northern Mariana Islands, and the Virgin Islands, under 20 U.S.C. 2362, 
20 U.S.C. 241 note, and 32 CFR part 68.
    (3) Ensure the establishment of elected school boards in DoD section 
6 School Arrangements operating under 20 U.S.C. 2362 and 20 U.S.C. 241 
note. The functions of such school boards shall be to oversee school 
expenditures and operations, subject to audit procedures established by 
the Director, section 6 Schools and consistent with 20 U.S.C. 2362, 20 
U.S.C. 241 note, and this part.
    (4) Ensure that the free public education being provided under this 
part is, to the maximum extent practicable, comparable to that being 
provided by comparable public school districts in the State in which the 
DoD section 6 School Arrangement or DoD section 6 Special Arrangement 
(as defined in 32 CFR part 68) is located or, if outside of CONUS, 
Alaska, and Hawaii, as the being provided by the District of Columbia 
Public Schools.
    (5) Ensure the establishment of audit procedures for reviewing 
funding of DoD section 6 School Arrangements and DoD section 6 Special 
Arrangements.
    (6) Ensure timely and accurate preparation of budget execution 
reports and full compliance with accounting requirements in accordance 
with DoD 7220.9-M.\1\
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (7) Ensure that nonappropriated funds and related activities of DoD 
section 6 School Arrangements are reviewed under DoD Directive 
7600.6.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 345.5(a)(6).
---------------------------------------------------------------------------

    (8) Establish guidance for student eligibility for DoD section 6 
School Arrangements.

[[Page 1041]]

    (9) Negotiate interservice support agreements with the Military 
Departments in accordance with DoD Directive 4000.19.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 345.5(a)(6).
---------------------------------------------------------------------------

    (10) Perform other functions as may be assigned by the ASD(FM&P).
    (b) The Assistant Secretary of Defense (Force Management and 
Personnel) shall:
    (1) Recommend policies and resources for the administration of the 
DoD section 6 Schools to the Secretary of Defense.
    (2) Exercise direction, authority, and control over the Director, 
DoD section 6 Schools, through the Director of Education, in accordance 
with 32 CFR part 346.
    (3) Issue, as necessary, DoD instructions, publications, and other 
guidance implementing this part.
    (c) The Comptroller of the Department of Defense shall provide 
technical advice and assistance to the Director, DoD section 6 Schools, 
on budget and financial management activities of the DoD section 6 
Schools.
    (d) The General Counsel of the Department of Defense shall:
    (1) Coordinate on guidance established by the Director, DoD section 
6 Schools, for student eligibility for DoD section 6 School 
Arrangements.
    (2) Provide legal advice on the implementation of this part.
    (e) The Secretaries of the Military Departments shall provide such 
facilities, logistics, and administrative support as are required for 
the effective operation of the DoD section 6 Schools program. 
Reimbursements for goods and services shall be made in accordance with 
DoD Directive 4000.19 and DoD Directive 1400.16.\4\ For the purposes of 
accepting gifts under 10 U.S.C. 2601 only, the Secretaries of the 
Military Departments shall be deemed to have jurisdiction over section 6 
Schools located on installations under their respective control.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 345.5(a)(6).
---------------------------------------------------------------------------



Sec. 345.6  Relationships.

    (a) In the performance of assigned duties, the Director, DoD section 
6 Schools, shall:
    (1) Exchange information and advice and coordinate actions with DoD 
Components having collateral or related functions.
    (2) Use established facilities and services in the Department of 
Defense and other Government Agencies, whenever practicable, to achieve 
maximum efficiency and economy of operations.
    (3) Consult and coordinate with other governmental and 
nongovernmental agencies on matters related to the mission of the DoD 
section 6 Schools.
    (b) All DoD Components shall coordinate with the Director, DoD 
section 6 Schools, as appropriate, on all matters relating to the 
operation of the DoD section 6 Schools.



Sec. 345.7  Authorities.

    The Director, DoD section 6 Schools, is specifically delegated 
authority to:
    (a) Execute the responsibilities and functions described in Sec. 
345.5.
    (b) Obtain reports, information, advice, and assistance, consistent 
with the policies and criteria of DoD Directive 7750.5,\5\ as deemed 
necessary.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 345.5(a)(6).
---------------------------------------------------------------------------

    (c) Communicate directly with appropriate representatives of the DoD 
Components and other governmental and nongovernmental agencies on 
matters related to the DoD section 6 Schools.
    (d) Exercise the operational and administrative authorities 
contained in appendix A to this part.



Sec. 345.8  Administration.

    (a) The Director, DoD section 6 Schools, shall be a civilian 
selected by the ASD(FM&P).
    (b) Administrative support for Headquarters, DoD section 6 Schools, 
and DoD section 6 Schools field elements shall be provided by the DoD 
Components.
    (c) The DoD section 6 Schools Office shall be authorized such 
personnel, facilities, funds, and other resources as the Secretary of 
Defense deems necessary.

[[Page 1042]]

            Appendix A to Part 345--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to the direction, authority, and control of the Secretary of 
Defense, and in accordance with DoD policies, Directives, and 
Instructions, the Assistant Secretary of Defense (Force Management and 
Personnel) (ASD(FM&P)) or, in the absence of the ASD(FM&P), the person 
acting for the ASD(FM&P), is hereby delegated authority, as required in 
administration and operation of the DoD section 6 Schools, to:
    1. Make determinations with respect to recruiting, selecting, 
removing, disciplining, and taking other actions involving civilian 
employees of the DoD section 6 Schools.
    2. In accordance with 5 U.S.C. 7532; E.O. 10450, 18 FR 2489, 3 CFR, 
1949-1953 Comp., p. 936; E.O. 12333, 46 FR 59941, 3 CFR, 1981 Comp., p. 
200; E.O. 12356, 47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166; and 
DoD Directive 5200.2,\1\ ``DoD Personnel Security Program,'' as 
appropriate:
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 345.5(a)(6).
---------------------------------------------------------------------------

    a. Designate any position in the DoD section 6 Schools as a 
``sensitive'' position.
    b. Authorize, in case of an emergency, the appointment of a person 
to a sensitive position in the DoD section 6 Schools for a limited 
period of time and for whom a full field investigation or other 
appropriate investigation, including the National Agency Check, has not 
been completed.
    c. Authorize the suspension, but not terminate the services, of a 
DoD section 6 Schools employee in the interest of national security.
    3. Authorize and approve:
    a. Travel for DoD section 6 Schools civilian employees, in 
accordance with Volume II, Joint Travel Regulations.
    b. Invitational travel to non-DoD personnel whose consultative, 
advisory, or other highly specialized technical services are required in 
a capacity that is directly related to, or in connection with, DoD 
section 6 Schools activities, in accordance with Volume II, Joint Travel 
Regulations.
    c. Overtime work for DoD section 6 Schools civilian employees in 
accordance with chapter 55, subpart V, of 5 U.S.C. and applicable OPM 
regulations.
    4. Develop, establish, and maintain an active and continuing Records 
Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 
5015.2,\2\ ``Records Management Program''.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 345.5(a)(6).
---------------------------------------------------------------------------

    5. Authorize the publication of advertisements, notices, or 
proposals in newspapers, magazines, and other public periodicals, as 
required for the effective administration of the DoD section 6 Schools 
consistent with 44 U.S.C. 3702.
    6. Establish and maintain, for the functions assigned, an 
appropriate publications system for the promulgation of common supply 
and service regulations, instructions, and reference documents, and 
changes thereto, pursuant to the policies and procedures prescribed in 
DoD 5025.1-M,\3\ ``DoD Directives System Procedures''.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 345.5(a)(6).
---------------------------------------------------------------------------

    7. Enter into support and service agreements with other DoD 
Components, including the Military Departments, as required for the 
effective performance of responsibilities and functions assigned to the 
DoD section 6 Schools.
    8. Enter into and administer contracts directly or through a 
Military Department, a DoD contract administration services component, 
or other Government Department or Agency, as appropriate, for supplies, 
equipment, and services required to accomplish the mission of the DoD 
section 6 Schools. To the extent that any law or Executive order 
specifically limits the exercise of such authority to persons at the 
Secretarial level of a Military Department, such authority shall be 
exercised by the appropriate Under Secretary or Assistant Secretary of 
Defense.
    The ASD(FM&P) may redelegate these authorities, as appropriate, and 
in writing, except as otherwise specifically indicated above, or as 
otherwise provided by law or regulation.



PART 346_DEPARTMENT OF DEFENSE EDUCATION ACTIVITY--Table of Contents




Sec.
346.1 Purpose.
346.2 Applicability.
346.3 Mission.
346.4 Organization.
346.5 Responsibilities and functions.
346.6 Relationships.
346.7 Authorities.
346.8 Administration.

    Authority: 10 U.S.C. 131(b).

    Source: 57 FR 53559, Nov. 12, 1992, unless otherwise noted.



Sec. 346.1  Purpose.

    Pursuant to the authority vested in the Secretary of Defense under 
10 U.S.C. 131(b), this part establishes the DoDEA with responsibilities, 
functions, authorities, and relationships as outlined.

[[Page 1043]]



Sec. 346.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD); 
the Military Departments; the Chairman of the Joint Chiefs of Staff and 
the Joint Staff; the Unified and Specified Commands; the Office of the 
Inspector General, Department of Defense; the Defense Agencies; and the 
DoD Field Activities (hereafter referred to collectively as the ``DoD 
Components.'') The term `` Military Services,'' as used herein, refers 
to the Army, the Navy, the Air Force, the Marine Corps, and the Coast 
Guard.



Sec. 346.3  Mission.

    The mission of the DoDEA is to:
    (a) Advise and act for the Assistant Secretary of Defense (Force 
Management and Personnel) (ASD(FM&P)) on all matters relative to the DoD 
Dependents Schools (DoDDS), section 6 Schools, and Continuing and Post-
Secondary Education (CAPSE) programs.
    (b) Formulate and develop policies, guidelines, and standards for 
the management of defense education activities and programs.
    (c) Plan, direct, coordinate, and manage the education programs for 
eligible dependents of U.S. military personnel and civilian personnel of 
the Department of Defense stationed overseas in accordance with 32 CFR 
part 347.
    (d) Plan, direct, coordinate, and manage the education programs for 
eligible dependents of U.S. military and civilian personnel stationed in 
areas prescribed in 20 U.S.C. 2362; in accordance with 20 U.S.C. 241 
note; and 32 CFR part 68.
    (e) Plan, direct, coordinate, and oversee the programs and services 
for continuing adult and post-secondary education for U.S. military 
personnel.



Sec. 346.4  Organization.

    The DoDEA is established as a DoD Field Activity under the 
authority, direction, and control of the ASD(FM&P). It shall consist of:
    (a) A Director, who shall be known as the Director of Education.
    (b) The DoDDS which, under 32 CFR part 347, provides a free public 
education of high quality from pre-kindergarten through grade twelve for 
eligible minor dependents of U.S. military and civilian personnel of the 
Department of Defense stationed overseas; a free, appropriate education 
for such minor dependents with disabilities, ages 3 through 21; and a 
community college program for eligible students in Panama.
    (c) The DoD section 6 Schools Office which, under 32 CFR part 345, 
provides a free public education for dependent children of U.S. military 
personnel and federally employed civilian personnel when those children 
are eligible for an education in DoD section 6 Schools under 20 U.S.C. 
2362, 20 U.S.C. 241 note, and 32 CFR part 68. Such free public education 
arrangements shall be made by the Secretary of Defense either with a 
local educational agency or with the head of a Federal Department or 
Agency, consistent with 20 U.S.C. 2362.
    (d) The Office of CAPSE which, under DoD Directive 1322.8,\1\ 
provides overall policy guidance and periodic review of voluntary 
education programs for military personnel, including the Defense 
Activity for Non-Traditional Education Support. The Office of CAPSE 
monitors the basic and/or functional skills programs conducted within 
the Department of Defense for military personnel and partnerships in 
education; provides support within the Department of Defense for 
implementation of the President's goals for adult literacy; and provides 
policy guidance and oversight of Tuition Assistance Programs for 
military personnel, consistent with DoD Directive 1322.8.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (e) Other subordinate elements as are established by the Director, 
within the resources assigned by the ASD(FM&P).



Sec. 346.5  Responsibilities and functions.

    (a) The Director of Education shall:
    (1) Serve as the principal staff advisor to the ASD(FM&P) on the 
DoDDS, section 6 Schools, and CAPSE programs.
    (2) Organize, manage, and direct the DoDEA, its subordinate 
elements, and all assigned resources.
    (3) Establish subordinate offices necessary to fulfill assigned 
missions.

[[Page 1044]]

    (4) Supervise, administer, implement, and evaluate the policies and 
procedures for the DoDDS, the section 6 Schools, and the CAPSE programs.
    (5) Enter into agreements with the Military Services or other U.S. 
Government entities, as required, for the effective performance of the 
responsibilities assigned in this part.
    (6) Supervise and administer DoDEA financial management activities.
    (7) Develop, for issuance by the ASD(FM&P), such policy or technical 
guidance, regulations, and instructions as are required to effectively 
administer and manage the education programs established under this 
part.
    (8) Provide DoDEA representation at meetings and deliberations of 
educational panels and advisory groups.
    (9) Perform other functions as may be assigned by the ASD(FM&P).
    (b) The Assistant Secretary of Defense (Force Management and 
Personnel) shall:
    (1) Recommend to the Secretary of Defense policies and resources for 
the administration of the DoDDS, section 6 Schools, and CAPSE programs.
    (2) Exercise direction, authority, and control over the DoDEA.
    (c) The Comptroller of the Department of Defense shall provide 
technical advice and support to the Director for Education on budget and 
financial management activities to the DoDEA.
    (d) The General Counsel of the Department of Defense shall provide 
legal advice on the implementation of this part.
    (e) The Secretaries of the Military Departments shall provide such 
facilities, logistic, and administrative support as are required for the 
effective operation of the DoDDS, section 6 Schools, and CAPSE programs. 
Reimbursements for goods and services shall be made in accordance with 
DoD Instruction 4000.19 \2\ and DoD Directive 1400.16.\3\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 346.5(e).
    \3\ See footnote 1 to Sec. 346.5(e).
---------------------------------------------------------------------------



Sec. 346.6  Relationships.

    (a) In the performance of assigned duties, the Director of Education 
shall:
    (1) Exchange information and advice and coordinate actions with DoD 
Components having collateral or related functions.
    (2) Use established facilities and services in the Department of 
Defense and other Government Agencies, whenever practical, to achieve 
maximum efficiency and economy of operations.
    (3) Consult and coordinate with other government and nongovernmental 
agencies on matters related to the mission of the DoDEA.
    (b) All DoD Components shall coordinate with the Director of 
Education, as appropriate, on matters affecting the mission and 
operation of the DoDEA.



Sec. 346.7  Authorities.

    The Director of Education is specifically delegated authority to:
    (a) Execute the responsibilities and functions described in Sec. 
346.5.
    (b) Obtain reports, information, advice, and assistance, consistent 
with the policies and criteria of DoD Directive 7750.5,\4\ as deemed 
necessary.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 346.5(e).
---------------------------------------------------------------------------

    (c) Communicate directly with appropriate representatives of the DoD 
Components and other governmental and nongovernmental agencies on 
matters related to the DoDDS, section 6 Schools, and CAPSE programs.



Sec. 346.8  Administration.

    (a) The Director of Education shall be a civilian selected by the 
ASD(FM&P).
    (b) Administrative support to the DoDEA shall be provided by DoD 
Components.
    (c) The DoDEA shall be authorized such personnel, facilities, funds, 
and other resources as the Secretary of Defense deems necessary.



PART 347_DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS (DoDDS)--Table of 
Contents




Sec.
347.1 Purpose.
347.2 Applicability and scope.
347.3 Mission.
347.4 Organization.
347.5 Responsibilities and functions.
347.6 Relationships.
347.7 Authorities.
347.8 Administration.

[[Page 1045]]


Appendix A to Part 347--Delegations of Authority.

    Authority: 10 U.S.C. 131(b).

    Source: 57 FR 53561, Nov. 12, 1992, unless otherwise noted.



Sec. 347.1  Purpose.

    This part:
    (a) Updates the organization, responsibilities, functions, 
relationships, and authorities for the administration of the DoDDS, 
which operates schools in overseas areas.
    (b) Under 10 U.S.C. 131(b), establishes, pursuant to the authority 
vested in the Secretary of Defense, the DoDDS, with the mission, 
organization, responsibilities, functions, relationships, and 
authorities as prescribed herein.
    (c) Under 20 U.S.C. 2701 et. seq. and 20 U.S.C. 1400 et. seq., 
establishes the Advisory Council on Dependents' Education (ACDE) and the 
Overseas Dependents' Schools National Advisory Panel on the Education of 
Disabled Dependents (NAP); establishes the Dependents Education Council 
(DEC); and, under DoD Instruction 1342.15,\1\ establishes such other 
Educational Advisory Committees or Councils (EACs) as are appropriate.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (d) Continues to authorize publication of DoD 1342.6-M \2\ in 
accordance with DoD 5025.1-M.\3\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 347.1(c).
    \3\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------



Sec. 347.2  Applicability and scope.

    This part applies to:
    (a) The Office of the Secretary of Defense; the Military 
Departments; the Chairman of the Joint Chiefs of Staff and the Joint 
Staff; the Unified and Specified Commands; the Office of the Inspector 
General, Department of Defense; the Defense Agencies; and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
Components''). The term ``Military Services,'' as used herein, refers to 
the Army, the Navy, the Air Force, the Marine Corps, and the Coast 
Guard.
    (b) Members appointed to serve on the ACDE, the NAP, the DEC, and 
other EACs established under authority of 20 U.S.C. 2701 et seq., and 
DoD Instruction 1342.15.



Sec. 347.3  Mission.

    The mission of the DoDDS is to provide, pursuant to 20 U.S.C. 2701 
et. seq. and DoD Directive 1342.13,\4\ a free public education of high 
quality from pre-kindergarten through grade twelve for eligible minor 
dependents of U.S. military and civilian personnel of the Department of 
Defense stationed overseas; and under 20 U.S.C. 1400 et. seq. and DoD 
Instruction 1342.12,\5\ to provide a free appropriate education for 
children with disabilities, ages 3 through 21; and, under 20 U.S.C. 
3731(g), to provide a community college program for eligible students in 
Panama.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 347.1(c).
    \5\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------

    (a) The DoDDS shall also provide programs designed to meet the 
special needs of:
    (1) The disabled.
    (2) Individuals in need of compensatory education.
    (3) Individuals with an interest in vocational education.
    (4) Gifted and talented individuals.
    (5) Individuals of limited English-speaking ability.
    (6) A developmental preschool program for eligible dependents who 
are of preschool age.
    (b) The DoDDS may also provide, to the extent funds are available:
    (1) Extracurricular and co-curricular programs and activities to 
enrich the school environment and experience.
    (2) Student travel to compete in interscholastic programs and 
competitions.



Sec. 347.4  Organization.

    (a) The DoDDS is established as an organizational element of the DoD 
Education Activity (DoDEA), a DoD Field Activity operating under the 
direction, authority, and control of the Assistant Secretary of Defense 
(Force Management and Personnel) (ASD(FM&P)). It shall consist of:
    (1) A Director.
    (2) The Office of Dependents' Education, which is the headquarters 
element of the DoDDS.

[[Page 1046]]

    (3) A subordinate organizational structure and such subordinate 
activities as shall be established by the Director, DoDDS, within 
resources authorized by the ASD(FM&P).
    (b) An ACDE shall be established, in accordance with 20 U.S.C. et. 
seq., and DoD Directive 5105.4,\6\ to advise the ASD(FM&P) and the 
Director, DoDDS, on improvements to achieve and maintain a high quality 
public educational program.
---------------------------------------------------------------------------

    \6\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------

    (c) A DEC shall be established to provide a consultative 
relationship between the ASD(FM&P) and the Director, DoDDS, and the 
Commanders of Unified Combatant Commands and major Service Commands to 
consider questions of educational policy, and matters related to 
facilities, logistics, and administrative support provided to the DoDDS 
by the Military Services.
    (d) An Overseas Dependents' Schools National Advisory Panel on the 
Education of Disabled Dependents shall be established to advise the 
Director, DoDDS, regarding the needs and requirements for the education 
of disabled children, as well as the rules and standards that should be 
developed and maintained for the operation of the system.
    (e) Other EACs shall be established to ensure effective 
communication between school administrators at all levels of 
administration within the DoDDS and the total school community. The 
operation of the EACs shall be in accordance with DoD Directive 1342.15.



Sec. 347.5  Responsibilities and functions.

    (a) The Director, DoD Dependents Schools, shall perform all duties 
necessary to organize, manage, fund, direct, and supervise the complete 
operation of the DoDDS. These duties include, but are not limited to, 
the following duties:
    (1) Serve as the principal advisor and staff assistant to the 
ASD(FM&P) on matters relating to overseas dependents education.
    (2) As required for the DoDDS to perform its mission effectively, 
develop policies and systems; conduct research, analysis, and 
evaluation; and issue guidance and regulations.
    (3) Keep abreast of developments in the elementary, secondary, and 
higher education field to ensure appropriate assimilation of new 
programs and technologies in the overseas dependents schools.
    (4) Enter into agreements with or through the DoD Components and 
other U.S. Government entities, and form such agreements as may be 
required for the effective performance of the DoDDS program.
    (5) Establish subordinate offices and schools necessary to fulfill 
the mission when practical and/or cost-beneficial.
    (6) Provide recommendations and support to the ASD(FM&P) in the 
development and justification of school construction, modification, and/
or repair projects included in annual military construction programs.
    (7) Develop, publish, interpret, and maintain:
    (i) DoD 1342.6-M to implement this part and other policy decisions 
of the Secretary of Defense.
    (ii) Eligibility policy and procedures for enrollment in an overseas 
dependents school.
    (iii) Policy and procedures for the operation and management of the 
ACDE, the DEC, the Overseas Dependents' Schools National Advisory Panel 
on the Education of Disabled Dependents, the installation and local 
advisory committees, and other EACs.
    (iv) Policy and procedures for the delivery of education and related 
services for children with disabilities.
    (8) Engage in collective bargaining and enter into collective 
bargaining agreements.
    (9) Ensure that the DoDDS are operated in accordance with governing 
law and regulation and with appropriate internal controls.
    (10) Enter into agreements with such domestic and foreign national 
school entities as are necessary to ensure the delivery of educational 
services under 20 U.S.C. 2701 et. seq., when no overseas dependent 
school operated by the Department of Defense is determined by DoDDS to 
be reasonably available.
    (11) Accept gratuitous services offered in support of DoDDS programs 
and mission.

[[Page 1047]]

    (12) Ensure timely and accurate preparation of budget execution 
reports and full compliance with accounting requirements in accordance 
with DoD 7220.9-M.
    (13) Establish and operate a nonappropriated fund for the support of 
student activities that are not supported from appropriated funds.
    (14) Establish membership in, and maintain liaison with, such 
professional educational associations or organizations as are necessary 
to maintain currency in educational developments and technologies, 
ensure the proper accreditation of the schools, and promote the 
advancement of educational goals and objectives.
    (15) Serve as the Executive Secretary of the DEC.
    (16) Serve as the Executive Secretary of the ACDE in accordance with 
20 U.S.C. 2701 et seq.
    (17) Perform other functions as may be assigned by the ASD(FM&P).
    (b) The Assistant Secretary of Defense (Force Management and 
Personnel) shall:
    (1) Recommend policies and resources for the administration of the 
DoDDS to the Secretary of Defense.
    (2) Exercise direction, authority, and control over the Director, 
DoDDS, through the Director of Education, in accordance with 32 CFR part 
346.
    (c) The Advisory Council on Dependents' Education shall meet 
periodically to:
    (1) Recommend to the Director, DoDDS, general policies for operation 
of the defense dependents' education system with respect to curriculum 
selection, administration, and operation of the system.
    (2) Facilitate the exchange of information between the Director, 
DoDDS, and other Federal Agencies regarding educational practices and 
programs that are relevant to the DoDDS.
    (3) Perform such other tasks as may be assigned by the ASD(FM&P).
    (d) The Dependents Education Council shall meet periodically to:
    (1) Consider questions of policy relating to the DoDDS.
    (2) Facilitate exchange of information between the DoDDS and the 
Military Services.
    (3) Provide advice to the ASD(FM&P) on matters pertaining to the 
DoDDS.
    (e) The Overseas Dependents' Schools National Advisory Panel on the 
Education of Disabled Dependents shall meet periodically to:
    (1) Recommend to the Director, DoDDS, general policies for operation 
of the defense dependents' education system with respect to education of 
individuals with disabilities.
    (2) Facilitate the exchange of information between the Director, 
DoDDS, and officials of other Federal Agencies regarding practices and 
programs that are relevant to education of individuals with 
disabilities.
    (3) Perform such other tasks as may be assigned by the ASD(FM&P).
    (f) The Comptroller of the Department of Defense shall provide 
technical advice and assistance to the Director, DoDDS, on budget and 
financial management activities of the DoDDS.
    (g) The General Counsel of the Department of Defense shall provide 
legal advice on the implementation of this part.
    (h) The Secretaries of the Military Departments, upon request, shall 
provide such facilities, logistics, and administrative support as are 
required for the effective operation of DoDDS activities and the 
operation of the DEC and other educational advisory committees and 
councils, including travel and per diem expenses of participant members. 
Reimbursements for goods and services shall be made in accordance with 
DoD Instruction 4000.19 \7\ and DoD Directive 1400.16 \8\. However, 
reimbursement shall not be required for expendable medical supplies and 
support provided to the DoDDS, which will be furnished and funded by the 
supporting activity.
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 347.1(c).
    \8\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------



Sec. 347.6  Relationships.

    (a) In the performance of assigned duties, the Director, DoDDS, 
shall:
    (1) Exchange information and advice and coordinate actions with DoD 
Components having collateral or related functions.
    (2) Use established facilities and services in the Department of 
Defense and

[[Page 1048]]

other Government Agencies, whenever practicable, to achieve maximum 
efficiency and economy of operations.
    (3) Consult and coordinate with other governmental and 
nongovernmental agencies on matters related to the mission of the DoDDS.
    (b) All DoD Components shall coordinate with the Director, DoDDS, as 
appropriate, on matters affecting the mission and operation of the 
DoDDS.



Sec. 347.7  Authorities.

    The Director, DoDDS, is specifically delegated authority to:
    (a) Execute the responsibilities and functions described in Sec. 
347.5.
    (b) Obtain reports, information, advice, and assistance, consistent 
with the policies and criteria of DoD Directive 7750.5,\9\ as deemed 
necessary.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------

    (c) Communicate directly with appropriate representatives of the DoD 
Components and other governmental and nongovernmental agencies on 
matters related to the DoDDS.
    (d) Exercise the operational and administrative authorities in 
appendix A to this part when delegated by the ASD(FM&P).



Sec. 347.8  Administration.

    (a) The Director, DoDDS, shall be a civilian selected by the 
ASD(FM&P).
    (b) The DoDDS shall be authorized such personnel, facilities, funds, 
and other resources as the Secretary of Defense deems necessary.

            Appendix A to Part 347--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to the direction, authority, and control of the Secretary of 
Defense, and in accordance with DoD policies, Directives, and 
Instructions, the Assistant Secretary of Defense (Force Management and 
Personnel) ASD(FM&P)), or in the absence of the ASD(FM&P), the person 
acting for the ASD(FM&P), is hereby delegated authority as required in 
the administration and operation of the DoDDS to:
    1. Exercise the powers vested in the Secretary of Defense by 5 
U.S.C. 301, 302, and 3101 on the employment, direction, and general 
administration of DoDDS civilian personnel.
    2. Fix rates of pay for wage-rate employees exempted from the 
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates 
established under the Coordinated Federal Wage System. In fixing such 
rates, the ASD(FM&P) shall follow the wage schedule established by the 
DoD Wage Fixing Authority.
    3. Establish advisory committees and employ temporary or 
intermittent experts or consultants, as approved by the Secretary of 
Defense, for the performance of DoDDS functions consistent with 10 
U.S.C. 173, 5 U.S.C. 3109(b), DoD Directive 5105.4, and the agreement 
between the Department of Defense and the Office of Personnel Management 
(OPM) on employment of experts and consultants, June 21, 1977.
    4. Administer oaths of office incident to entrance into the 
Executive Branch of the Federal Government or any other oath required by 
law in connection with employment therein, in accordance with 5 U.S.C. 
2903, and designate in writing, as may be necessary, officers and 
employees of the DoDDS to perform this function.
    5. Establish a DoDDS Incentive Awards Board and authorize cash 
awards to, and incur necessary expenses for, the honorary recognition of 
civilian employees of the Government whose suggestions, inventions, 
superior accomplishments, or other personal efforts, including special 
acts or services, benefit or affect the DoDDS or its subordinate 
activities, in accordance with 5 U.S.C. 4503, applicable OPM 
regulations, and DoD Directive 5120.15.\1\
    6. In accordance with 5 U.S.C. 7532; E.O. 10450, 18 FR 2489, 3 CFR, 
1949-1953 Comp., p. 936; E.O. 12333, 46 FR 59941, 3 CFR, 1981 Comp., p. 
200; E.O. 12356, 47 FR 14874 and 15557, 3 CFR, 1982 Comp., p. 166; and 
DoD Directive 5200.2,\1\ ``DoD Personnel Security Program,'' as 
appropriate:
---------------------------------------------------------------------------

    \1\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------

    a. Designate any position in the DoDDS as a ``sensitive'' position.
    b. Authorize, in case of an emergency, the appointment of a person 
to a sensitive position in the DoDDS for a limited period of time and 
for whom a full field investigation or other appropriate investigation, 
including the National Agency Check, has not been completed.
    c. Authorize the suspension, but not terminate the services, of a 
DoDDS employee in the interest of national security.
    7. Authorize and approve:
    a. Travel for DoDDS civilian employees in accordance with Volume II, 
Joint Travel Regulations.
    b. Invitational travel to non-DoD personnel whose consultative, 
advisory, or other highly specialized technical services are required in 
a capacity that is directly related to, or in connection with, DoDDS 
activities,

[[Page 1049]]

in accordance with Volume II, Joint Travel Regulations.
    c. Overtime work for DoDDS civilian employees in accordance with 
chapter 55, subchapter V, of 5 U.S.C. and applicable OPM regulations.
    8. Develop, establish, and maintain an active and continuing Records 
Management Program pursuant to 44 U.S.C. 3102 and DoD Directive 
5015.2.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------

    9. Authorize the publication of advertisements, notices, or 
proposals in newspapers, magazines, or other public periodicals as 
required for the effective administration and operation of the DoDDS, 
consistent with 44 U.S.C. 3702.
    10. Establish and maintain, for the functions assigned, an 
appropriate publications system for the promulgation of common supply 
and service regulations, instructions, and reference documents, and 
changes thereto, pursuant to the policies and procedures prescribed in 
DoD 5025.1-M.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 347.1(c).
---------------------------------------------------------------------------

    11. Enter into support and service agreements with the Military 
Departments, other DoD Components, or other Government Agencies, as 
required, for the effective performance of DoDDS functions and 
responsibilities.
    12. Enter into and administer contracts, directly or through a 
Military Department, a DoD contract administration services component, 
or other Federal Agency, as appropriate, for supplies, equipment, and 
services required to accomplish the mission of the DoDDS. To the extent 
that any law or Executive order specifically limits the exercise of such 
authority to persons at the Secretarial level of a Military Department, 
such authority shall be exercised by the appropriate Under Secretary or 
Assistant Secretary of Defense.
    13. Approve waivers of indebtedness for DoDDS employees in 
accordance with 5 U.S.C. 5584.
    The ASD(FM&P) may redelegate these authorities, as appropriate, and 
in writing, except as otherwise provided by law or regulation.
    These delegations of authority are October 13, 1992.



PART 352a_DEFENSE FINANCE AND ACCOUNTING SERVICE (DFAS)--Table of Contents




Sec.
352a.1 Purpose.
352a.2 Applicability.
352a.3 Organization and management.
352a.4 Responsibilities and functions.
352a.5 Relationships.
352a.6 Authorities.

Appendix to Part 352a--Delegations of Authority

    Authority: 10 U.S.C. 113.

    Source: 55 FR 50179, Dec. 5, 1990, unless otherwise noted.



Sec. 352a.1  Purpose.

    Pursuant to the authority vested in the Secretary of Defense under 
provisions of title 10, United States Code, this part establishes the 
Defense Finance and Accounting Service (DFAS) as an Agency of the 
Department of Defense with responsibilities, functions, authorities, and 
relationships.



Sec. 352a.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD); 
the Military Departments; the Chairman, Joint Chiefs of Staff and Joint 
Staff; the Unified and Specified Commands; the Inspector General of the 
Department of Defense (IG, DoD); the Defense Agencies; and the DoD Field 
Activities (hereafter referred to collectively as ``DoD Components'')



Sec. 352a.3  Organization and management.

    (a) The DFAS is established as an Agency of the Department of 
Defense under the direction, authority, and control of the Comptroller 
of the Department of Defense (C, DoD).
    (b) The DFAS shall consist of a Director, selected by the Secretary 
of Defense, and such subordinate organizational elements as are 
established by the Director within resources authorized by the Secretary 
of Defense.
    (c) Military personnel shall be assigned to the DFAS in accordance 
with approved authorizations and procedures for assignment to joint 
duty.



Sec. 352a.4  Responsibilities and functions.

    (a) The Director, Defense Finance and Accounting Service (DFAS), is 
the principal DoD executive for finance and accounting requirements, 
systems, and functions identified in DoD Directive 5118.3,\1\ and shall:
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.

---------------------------------------------------------------------------

[[Page 1050]]

    (1) Organize, direct, and manage the DFAS and all assigned 
resources.
    (2) Direct finance and accounting requirements, systems, and 
functions for all appropriated, nonappropriated, working capital, 
revolving, and trust fund activities, including security assistance.
    (3) Establish and enforce requirements, principles, standards, 
systems, procedures, and practices necessary to comply with finance and 
accounting statutory and regulatory requirements applicable to the 
Department of Defense.
    (4) Provide finance and accounting services for DoD Components and 
other Federal activities, as designated by the C, DoD.
    (5) Direct the consolidation, standardization, and integration of 
finance and accounting requirements, functions, procedures, operations, 
and systems within the Department of Defense and ensure their proper 
relationship with other DoD functional areas (e.g., budget, personnel, 
logistics, acquisition, civil engineering, etc.).
    (6) Execute statutory and regulatory financial reporting 
requirements and render financial statements.
    (7) Serve as the proponent for civilian professional development in 
finance and accounting disciplines, and act as approval authority for 
competency standards and training requirements for appropriate military 
positions within the DFAS.
    (8) Provide advice and recommendations to the C, DoD, on finance and 
accounting matters.
    (9) Approve the establishment or maintenance of all finance and 
accounting activities independent of the DFAS.
    (10) Develop, issue, and maintain DoD 7220.9-M,\2\ in accordance 
with DoD 5025.1-M,\3\ consistent with governing statutes, regulations, 
and policies.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 352a.4(a).
    \3\ See footnote 1 to Sec. 352a.4(a).
---------------------------------------------------------------------------

    (11) Perform other functions as the Secretary of Defense, Deputy 
Secretary of Defense, or the C, DoD, may prescribe.
    (b) The Comptroller of the Department of Defense (C, DoD) shall 
provide guidance and direction to the Director, DFAS, on policies and 
procedures related to the development and operation of DFAS programs and 
systems.
    (c) The Heads of DoD Components shall:
    (1) Comply with the requirements, principles, standards, procedures, 
and practices issued pursuant to Sec. 352a.4(a).
    (2) Obtain finance and accounting services from the DFAS.
    (3) Provide facilities, personnel, and other support and assistance 
required to accomplish DFAS objectives, consistent with this Directive 
and the responsibilities and functions in Sec. 352a.4(a) and the 
authorities in Sec. 352a.6.
    (d) Operational commanders shall continue to be responsible for the 
control, location, and safety of deployed accounting and finance 
personnel and resources.

[55 FR 50179, Dec. 5, 1990, as amended at 63 FR 33248, June 18, 1998]



Sec. 352a.5  Relationships.

    (a) In the performance of assigned responsibilities and functions, 
the Director, DFAS, shall:
    (1) Maintain liaison with DoD Components, other Government Agencies, 
foreign governments, and private sector organizations for the exchange 
of information concerning assigned programs, activities, and 
responsibilities.
    (2) Use established facilities and services of the Department of 
Defense and other Federal Agencies, whenever practicable, to avoid 
duplication and to achieve modernization, efficiency, economy, and user 
satisfaction.
    (b) The heads of DoD Components shall coordinate with the Director, 
DFAS, on all matters related to the responsibilities and functions 
listed in Sec. 352a.4(a).



Sec. 352a.6  Authorities.

    The Director, DFAS, is specifically delegated authority to:
    (a) Represent the C, DoD, on finance and accounting matters.
    (b) Have free and direct access to, and communicate with, DoD 
Components and other Executive Departments and Agencies concerning 
finance and accounting activities, as necessary.

[[Page 1051]]

    (c) Enter into agreements with DoD Components and other Government 
or Non-Government entities for the effective performance of the DFAS 
mission and programs.
    (d) Establish DFAS facilities if needed facilities or services of 
other DoD Components are not available. Establishment of new facilities 
and services will be accomplished during normal program and budget 
processes.
    (e) Obtain reports, information, advice, and assistance from DoD 
Components, consistent with the policies and criteria of DoD Directive 
7750.5.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 352a.4(a).
---------------------------------------------------------------------------

             Appendix to Part 352a--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to the direction, authority, and control of the Secretary of 
Defense, and in accordance with DoD policies, Directives, and 
Instructions, the Director, Defense Finance and Accounting Service 
(DFAS), or in the absence of the Director, the person acting for the 
Director, is hereby delegated authority as required in the 
administration and operation of the DFAS to:
    1. Establish advisory committees and employ part-time advisors, as 
approved by the Secretary of Defense, in support of assigned DFAS 
functions pursuant to 10 U.S.C. 173; Pub. L. 92-463, ``Federal Advisory 
Committe Act''; and DoD Directive 5105.4 \1\, ``Department of Defense 
Federal Advisory Committee Management Program,'' September 5, 1989.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, National Technical Information 
Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    2. Designate any position in the DFAS as a ``sensitive'' position, 
in accordance with 5 U.S.C. 7532; Executive Order 10450, as amended; and 
DoD Directive 5200.2 \2\. ``DoD Personnel Security Program,'' December 
20, 1979, as appropriate.
---------------------------------------------------------------------------

    \2\ See footnote 1 to paragraph 1. of this appendix.
---------------------------------------------------------------------------

    a. Authorize, in case of an emergency, the appointment to a 
sensitive position, for a limited period of time, of a person for whom a 
full field investigiation or other appropriate investigation, including 
the National Agency Check, has not been completed.
    b. Authorize the suspension, but not terminate the service, of the 
employee in the interest of national security.
    3. Authorize and approve overtime work for assigned civilian 
personnel in accordance with 5 U.S.C. chapter 55, subchapter V, and 
applicable Office of Personnel Management (OPM) regulations.
    4. Authorize and approve:
    a. Travel for assigned personnel, in accordance with Joint Travel 
Regulations.
    b. Invitational travel to persons serving without compensation whose 
consultative, advisory, or other services are required for assigned 
activities and responsibilities pursuant to 5 U.S.C. 5703.
    5. Approve the expenditure of funds available for travel by assigned 
or detailed military personnel for expenses regarding attendance at 
meetings of technical, scientific, professional, or other similar 
organizations in such instances when the approval of the Secretary of 
Defense, or designee, is required by law (37 U.S.C. 412 and 5 U.S.C. 
4110 and 4111). This authority cannot be redelegated.
    6. Develop, establish, and maintain an active and continuing Records 
Management Program and DoD Directive 5015.2 \3\, ``Records Management 
Program,'' September 17, 1980; DoD Directive 5400.74 \4\, ``DoD Freedom 
of Information Act Program,'' May 13, 1988; and DoD Directive 5400.11 
\5\, ``Department of Defense Privacy Program,'' June 9, 1982.
---------------------------------------------------------------------------

    \3\ See footnote 1 to paragraph 1 of this appendix.
    \4\ See footnote 1 to paragraph 1 of this appendix.
    \5\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    7. Establish and use imprest funds for making small purchases of 
material and services, other than personal services, when it is 
determined more advantageous and consistent with the best interests of 
the Government, in accordance with DoD Directive 7360.10 \6\, 
``Disbursing Policies,'' January 17, 1989.
---------------------------------------------------------------------------

    \6\ See footnote 1 to paragraph 1. of this appendix.
---------------------------------------------------------------------------

    8. Authorize the publication of advertisements, notices, or 
proposals, in newspapers, magazines, or other public periodicals as 
required for the effective administration and operation of assigned 
responsibilities, consistent with 44 U.S.C. 3702.
    9. Establish and maintain appropriate property accounts, appoint 
Boards of Survey, approve reports of survey, relieve personal liability, 
and remove accountability for Agency property contained in the 
authorized property accounts that has been lost, damaged, stolen, 
destroyed, or otherwise rendered unserviceable, in accordance with 
applicable laws and regulations.
    10. Promulgate the necessary security regulations for the protection 
of property placed under the jurisdiction of the Director, pursuant to 
DoD Directive 5200.8 \7\, ``Security of Military Installation of 
Resources,'' July 29, 1980.
---------------------------------------------------------------------------

    \7\ See footnote 1 to paragraph 1 of this appendix.

---------------------------------------------------------------------------

[[Page 1052]]

    11. Establish and maintain a publications system for the 
promulgation of common accounting and finance regulations, instructions, 
and reference documents, and changes thereto, pursuant to the policies 
and procedures prescribed in DoD 5025.1-M \8\, ``Department of Defense 
Directives System Procedures,'' April 1981, authorized by DoD Directive 
5025.1 \9\, December 23, 1988.
---------------------------------------------------------------------------

    \8\ See footnote 1 to paragraph 1 of this appendix.
    \9\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    12. Exercise the powers vested in the Secretary of Defense by 5 
U.S.C. 310, 302(b), and 3101 of the employment, direction, and general 
administration of assigned employees.
    13. Administer oaths of office to those entering the Executive 
branch of the Federal Government or any other oath required by law in 
connection with employment therein, in accordance with 5 U.S.C. 2903, 
and designate in writing, as may be necessary, officers and employees of 
the DFAS to perform this function.
    14. Establish a DFAS Incentive Awards Board, and pay cash awards to, 
and incur necessary expenses for the honorary recognition of, civilian 
employees of the Government whose suggestions, inventions, superior 
accomplishments, or other personal efforts, including special acts or 
services, benefit or affect the DFAS or its subordinate activities, in 
accordance with 5 U.S.C. 4503, OPM regulations, and DoD Directive 
5120.15 \10\, ``Authority for Approval of Cash Honorary Awards for DoD 
Personnel,'' August 13, 1985.
---------------------------------------------------------------------------

    \10\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    15. Act as an agent for the collection and payment of employment 
taxes imposed by Chapter 21 of the Internal Revenue Code of 1954, as 
amended; and, as such agent, make all determinations and certification 
required or provided for under the Internal Revenue Code of 1954, as 
amended (26 U.S.C. 3122), and the Social Security Act (42 U.S.C. 
405(p)(1) and (2)), as amended, on assigned employees.
    16. Enter into and administer contracts directly or through a 
Military Department, a DoD contracting administration service component, 
or other Government Department or Agency, as appropriate, for supplies, 
equipment, and services required to accomplish the DFAS mission.
    17. Oversee disbursing officials and operations in accordance with 
the procedures of 31 U.S.C., as follows:
    a. Manage the approval and appointment process for disbursing and 
certifying officials pursuant to 31 U.S.C. 3321 and 3325.
    b. Make determinations and recommendations with respect to the 
granting of relief to disbursing officials pursuant to the authority 
contained in 31 U.S.C. 3527.
    c. Approve requests to hold cash at personal risk for authorized 
purposes, including imprest funds, and to redelegate such authority as 
appropriate in the administration and control of DoD funds, consistent 
with the Treasury Financial Manual (TFM) and under the authority of 31 
U.S.C. 3321 and 3342.
    d. Approve DoD Component disbursing regulations developed to 
implement the TFM and to grant waivers when delegated by the Secretary 
of the Treasury to heads of Executive Departments and Agencies.

The Director, DFAS may, in writing, redelegate these authorities as 
appropriate, except as otherwise specifically indicated above or as 
otherwise provided by law or regulation.



PART 362_DEFENSE INFORMATION SYSTEMS AGENCY (DISA)--Table of Contents




Sec.
362.1 Purpose.
362.2 Definitions.
362.3 Mission.
362.4 Organization and management.
362.5 Responsibilities and functions.
362.6 Relationships.
362.7 Authority.
362.8 Administration.

Appendix A to Part 362--Delegations of Authority

    Authority: 10 U.S.C. 193.

    Source: 56 FR 31540, July 11, 1991, unless otherwise noted.



Sec. 362.1  Purpose.

    This part changes the name of the Defense Communications Agency 
(DCA) to the Defense Information Systems Agency (DISA) and revises the 
responsibilities, functions, relationships, and authorities of the DISA. 
For the purposes of 10 U.S.C. 193, any other law or regulation, or for 
any other purpose, DISA will perform the functions of the Defense 
Communications Agency.



Sec. 362.2  Definitions.

    (a) Defense Communications System (DCS). (1) The DCS is a composite 
of DoD-owned and -leased telecommunications subsystems and networks 
comprised of facilities, personnel, and material under the management 
control and operational direction of the DISA. It provides the longhaul, 
point-to-point, and switched network telecommunications needed to 
satisfy the requirements of the Department of Defense and certain other 
Government

[[Page 1053]]

Agencies, including those required to interconnect the NCA, the Chairman 
of the Joint Chiefs of Staff, and the Unified and Specified Commanders 
with the general purpose networks.
    (2) The DCS includes fixed, transportable, and mobile facilities. It 
consists of:
    (i) Switching and/or relay facilities to include associated software 
of the general purpose (common user) networks, such as Defense Switched 
Network (DSN), Automatic Digital Network (AUTODIN), Defense Data Network 
(DDN), and Secure Voice System.
    (ii) Transmission media and/or circuits that provide user and/or 
subscriber connection into the DCS networks, or which interconnect the 
switching and/or relay facilities and/or the user and/or subscriber 
terminals in use by the DCS. This includes the assets of the Defense 
Satellite Communications System, except those portions that are 
specifically excluded from the DCS.
    (3) Although the DISA specifies the interconnection and interface 
standards when operated with DCS networks, the DCS does not include:
    (i) Mobile and/or transportable communications facilities and assets 
organic to Army, Navy, Air Force, and Fleet Marine forces, unless 
specifically designated as components of the DCS.
    (ii) Ship and/or ship, ship and/or shore, air and/or air, air and/or 
ground, and other tactical telecommunications.
    (iii) Post, camp, base, and station user and/or subscriber 
facilities and terminals.
    (iv) On-site telecommunications facilities associated with or 
integral to weapons systems and to missile launch complexes, including 
those required for countdown, command, control, weapons destruct, and 
range safety.
    (v) Consoles and display devices integral to the Unified and 
Specified Command Centers, their DoD Component Headquarters, and the 
Military Services' operations centers.
    (b) Fielding Plan. A fielding plan details the coordination and 
execution involved in the deployment of a system or equipment, and 
addresses interoperability opportunities and constraints. The plan 
includes sufficient information for a common understanding between the 
program sponsor and the gaining command for equipment quantities, 
implementation schedules, skill qualifications and training, and any 
additional manpower, facilities, or support requirements.
    (c) Long-haul Telecommunications. All general purpose and special 
purpose long-distance facilities and services (including terminal 
equipment and local circuitry supporting the long-haul service) used to 
support the electromagnetic and/or optical dissemination, transmission, 
or reception of information via voice, data, video, integrated 
telecommunications, wire, or radio to or from the post, camp, base, or 
station switch and/or main frame (except for trunk lines to the first-
serving commercial central office for local communications services). 
That includes the FTS2000, DSN, DDN, the AUTODIN, dedicated point-to-
point service, and the Primary Interexchange Carrier service associated 
with business or tie line to the local exchange carrier (e.g., Direct 
Distance Dialing, Foreign Exchange, WATS, 800 service, etc.) and 
contractor-provided telecommunications, including the interconnection of 
various functional Automated Data Processing Systems.
    (d) Military Departments' Operations and Maintenance Commands. The 
Army Information Systems Command, Air Force Communications Command, and 
the Naval Computers and Telecommunications Command.
    (e) Military Satellite Communications (MILSATCOM) Systems. The 
totality of existing and planned DoD satellite communications capability 
consisting of the space, ground, and control segments. MILSATCOM systems 
include the interfaces between satellite systems and ground segments, 
and the interfaces with other communications systems.
    (f) National Communications System (NCS). (1) The NCS was 
established by E.O. 12472 (3 CFR, 1984 Comp., p. 193). It consists of 
the telecommunications assets of the entities represented on the NCS 
Committee of Principals and an administrative structure consisting of 
the Executive Agent, the NCS Committee of Principals, and the Manager.

[[Page 1054]]

    (2) The mission of the NCS is to assist the President, the National 
Security Council, the Director of the Office of Science and Technology 
Policy, and the Director of the Office of Management and Budget in:
    (i) The exercise of the telecommunications functions and 
responsibilities assigned in E.O. 12472.
    (ii) The coordination of the planning for, and provision of, 
national security emergency preparedness communications for the Federal 
Government under all circumstances, including crisis or emergency, 
attack, recovery, and reconstitution.
    (g) National Military Command System (NMCS). The NMCS is the 
priority DoD Component of the WWMCCS designed to support the NCA in the 
exercise of its responsibilities. It also supports the Chairman of the 
Joint Chiefs of Staff in the exercise of his responsibilities.
    (h) Operational Test Agency (OTA). Separate and independent from the 
material developing and/or procuring Agency and from the using Agency, 
the major field OTA shall be responsible for planning and conducting 
operational tests, reporting test results, and providing an evaluation 
of the tested system's operational effectiveness and suitability 
directly to the Agency's Director.
    (i) Procedural Interface Standards. Specifications for accomplishing 
the exchange of information across an interface. They define:
    (1) The form or format in which information is to be exchanged.
    (2) The prescribed information exchange language, syntax, and 
vocabulary to be used in the information exchange.
    (3) Interface operating procedures that govern the information 
exchange.
    (j) Technical Interface Standards. Specifications of the functional, 
electrical, and physical characteristics necessary to allow the exchange 
of information across an interface between different C3 and information 
systems or equipment.
    (k) Worldwide Military Command and Control System (WWMCCS). The 
WWMCCS is the worldwide command and control system that provides the 
means for operational direction and technical administrative support 
involved in the function of C2 of U.S. military forces.



Sec. 362.3  Mission.

    The DISA is responsible for planning, developing, and supporting 
command, control, communications (C3), and information systems that 
serve the needs of the National Command Authorities (NCA) under all 
conditions of peace and war. It provides guidance and support on 
technical and operational C3 and information systems issues affecting 
the Office of the Secretary of Defense (OSD), the Military Departments, 
the Chairman of the Joint Chiefs of Staff and the Joint Staff, the 
Unified and Specified Commands, and the Defense Agencies (hereafter 
referred to collectively as ``the DoD Components''). It ensures the 
interoperability of the Worldwide Military Command and Control System 
(WWMCCS), the Defense Communications System (DCS), theater and tactical 
command and control systems, North Atlantic Treaty Organization and/or 
allied C3 systems, and those national and/or international commercial 
systems that affect the DISA mission. It supports national security 
emergency preparedness telecommunications functions of the National 
Communications System (NCS), as prescribed by E.O. 12472.



Sec. 362.4  Organization and management.

    The DISA is established as a Combat Support Agency of the Department 
of Defense, and shall be under the direction, authority, and control of 
the Assistant Secretary of Defense for Command, Control, Communications, 
and Intelligence (ASD(C3I)). It shall consist of a Director and such 
subordinate organizational elements as are established by the Director 
within the resources authorized by the Secretary of Defense.



Sec. 362.5  Responsibilities and functions.

    (a) The Director, Defense Information Systems Agency, shall:
    (1) Organize, direct, and manage the DISA and all assigned resources 
consistent with this part.
    (2) Provide technical and management advice, and perform planning, 
support systems engineering, and test and/or evaluation support through 
the

[[Page 1055]]

design, development, deployment, and evolution of the WWMCCS, as defined 
in DoD Directive 5100.30.\1\ This includes the National Military Command 
System (NMCS) under DoD Directive S-5100.44 \2\ and supporting 
Communications, especially connectivity to nuclear forces. In accordance 
with DoD Directive 5100.79,\3\ provide the necessary guidance, 
direction, and support to accomplish the definition of technical 
concepts and performance characteristics for engineering the WWMCCS in 
consonance with the approved WWMCCS architecture. Recommend revision of 
the WWMCCS architecture to meet changing policy, doctrine, requirements, 
systems environments, threats, technology, and resources. Provide 
planning, engineering, and technical support to the DoD Components, as 
needed, to ensure the evolution and integration of C3 and information 
systems within the WWMCCS.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ Classified document. Not releasable to the public.
    \3\ See footnote 1 to Sec. 362.5(a)(2).
---------------------------------------------------------------------------

    (3) Perform systems engineering for the DCS and ensure that the DCS 
is planned, improved, operated, maintained, and managed effectively and 
efficiently. Ensure that end-to-end interoperability and architecture 
are adequate to meet mission needs. Exercise program management 
responsibility with management control over the activities of the DoD 
Components that directly support the establishment and improvement of 
the DCS.
    (4) In consultation with the Chairman of the Joint Chiefs of Staff, 
formulate the DoD-wide Military Satellite Communications (MILSATCOM) 
architecture. Analyze user requirements and maintain the user data base. 
Define system performance criteria for MILSATCOM systems. Establish, in 
coordination with the DoD Components, overall goals and long-term system 
plans and transitions for MILSATCOM systems. Perform general systems 
engineering to promote end-to-end interoperability and performance to 
meet mission needs. Analyze, on a continuing basis, Military Service 
programs, plans, budgets, and MILSATCOM systems performance 
deficiencies, and recommend corrective action, as appropriate. Manage, 
operate, and support the MILSATCOM systems office to perform functions 
specified in DoD Directive 5105.44.\4\
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 362.5(a)(2).
---------------------------------------------------------------------------

    (5) Ensure the end-to-end interoperability of strategic and tactical 
C3 and information systems used by the NCA and the DoD Components for 
joint and combined operations. Develop and maintain joint architectures, 
technical and procedural interface standards, specifications, protocols, 
and definitions; and test and/or verify the interoperability of hardware 
and procedures for strategic and tactical C3 and information systems. 
Recommend certification for these systems and their equipment 
interfaces. With respect to tactical command, control, communications, 
and intelligence (C3I) systems, DoD Directive 4630.5 \5\ shall be 
observed.
---------------------------------------------------------------------------

    \5\ See footnote 1 to Sec. 362.5(a)(2).
---------------------------------------------------------------------------

    (6) Provide automated information systems, analytical, and other 
technical support for Chairman of the Joint Chiefs of Staff- and OSD-
managed programs. Manage, design, develop, maintain, test, and evaluate 
standard operating systems and applications software for the WWMCCS, as 
directed. Assist in implementing configuration control over evolving 
information systems.
    (7) Develop systems architectures and provide systems engineering 
support. Ensure the evolution of integrated C3 and information systems 
supporting the NCA's and DoD Components' capability to effectively 
employ weapon systems and forces. Identify and implement technical 
improvements and assist the Chairman of the Joint Chiefs of Staff and 
the Commanders of the Unified and Specified Commands in identifying C3 
systems' deficiencies.
    (8) Manage nationally sensitive special C3 programs, as directed by 
higher authority.
    (9) Acquire commercial communications services (e.g., long-haul 
telecommunications circuits, facilities, networks, and associated 
equipment) for the Department of Defense and

[[Page 1056]]

other Federal Agencies, as directed; initiate and manage actions 
relating to regulatory and tariff matters, including rates for these 
commercial communications services; and manage and maintain the 
Communications Services Industrial Fund.
    (10) Execute tasks as manager of the NCS as may be assigned by law 
or directed by the Secretary of Defense in the Secretary's capacity as 
Executive Agent of the NCS.
    (11) Review Military Department programs and budgets related to the 
DISA mission, and recommend actions, through the ASD(C3I), to the 
Secretary of Defense.
    (12) Provide DoD representation and/or participation in selected 
national and international C3 activities.
    (13) Assist OSD and Chairman of the Joint Chiefs of Staff activities 
by assessing technology; recommend and conduct a program of research, 
development, test, and evaluation (RDT&E) necessary to ensure that C3 
systems remain capable of performing their assigned functions in 
threatened environments. Monitor and coordinate, as appropriate, DoD 
Component C3 RDT&E programs.
    (14) Exercise operational direction and management control of the 
DCS through the DISA Operations Control Complex and the Military 
Departments' operations and maintenance commands. Perform circuit 
engineering and allocation, and direct restoral for the DCS, in 
coordination with the NCS's National Coordinating Center.
    (15) Establish and maintain a major field independent operational 
test capability, as an Operational test agency (OTA) under the director, 
and conduct operational test and evaluation (OT&E) in accordance with 
DoD Directive 5000.1.\6\ Conduct OT&E in a mission and threat 
environment as operationally realistic as possible.
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    \6\ See footnote 1 to Sec. 362.5(a)(2).
---------------------------------------------------------------------------

    (16) Serve as Executive Agent and authority for the Joint 
Interoperability of Tactical Command and Control Systems Program and the 
Tactical C3I Interoperability Improvement Program.
    (17) Provide administrative support to the White House 
Communications Agency and to the Office of Emergency Operations.
    (18) Serve on the Military Communications Electronics Board.
    (19) Provide liaison with, and communications support for, the 
United States Secret Service in accordance with DoD Directive 
3025.13.\7\
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 362.5(a)(2).
---------------------------------------------------------------------------

    (20) Develop and maintain databases of developmental and existing 
interoperability standards.
    (21) Coordinate information system security (communications security 
and computer security) interoperability requirements with cognizant DoD 
Components.
    (22) Review tactical C3 Fielding Plans and define interface 
specifications, develop and maintain a joint tactical C3 architecture 
defining joint tactical communications systems (including nonstrategic 
nuclear forces C3) required to ensure interoperability and information 
flow among command and control (C2) systems.
    (23) Develop, test, and maintain technical and procedural interface 
standards to be used by tactical C3 systems in joint or combined 
military operations, in accordance with guidance provided by the 
Chairman of the Joint Chiefs of Staff, and verify that such systems have 
implemented the approved interface standards.
    (24) Monitor and coordinate strategic and/or tactical C3 programs 
for which the DISA has responsibility, but which are included in the 
programs of other DoD Components and Government Agencies, and monitor 
other programs that may affect tactical C3 interoperability.
    (25) Provide source documents from which the DoD Components can 
develop training materials to facilitate implementation of the tactical 
C3 architecture.
    (26) Develop and maintain databases of tactical C3 developmental and 
existing interoperability standards.
    (27) Coordinate secure tactical C3 communications interoperability 
requirements with the National Security Agency (NSA)/Central Security 
Service (CSS), the Defense Intelligence Agency, the Military 
Departments, and the Chairman of the Joint Chiefs of Staff.

[[Page 1057]]

    (28) In coordination with NSA/CSS and the Military Departments, and 
in accordance with DoD Directive C-5200.5,\8\ develop a tactical secure 
communications architecture as an integral part of the overall joint 
architecture, including orderly and timely introduction of systems to 
satisfy interoperability requirements.
---------------------------------------------------------------------------

    \8\ See footnote 2 to Sec. 362.5(a)(2).
---------------------------------------------------------------------------

    (29) Provide technical support to the ASD(C3I) in the implementation 
of the Defense information management program and the Defense corporate 
information management initiative, to include administrative and 
technical support as directed by the ASD(C3I).
    (30) Support the technical implementation of the Defense information 
management program and the Defense corporate information management 
initiative DoD-wide, to include the development and use of process, 
data, performance and economic models, and related tools; assisting in 
the development, coordination and execution of the DoD data 
administration program; providing, as tasked, information services to 
include operation and design activities and data processing centers; and 
assisting in the assessment of DoD information services' efficiency and 
effectiveness.
    (31) Perform such other functions as may be assigned by the ASD(C3I)
    (b) [Reserved]



Sec. 362.6  Relationships.

    (a) In performing assigned functions, the Director, DISA, shall:
    (1) Subject to the direction, authority, and control of the 
ASD(C3I), be responsible to the Chairman of the Joint Chiefs of Staff 
for operational matters as well as requirements associated with the 
joint planning process. For these purposes, the Chairman of the Joint 
Chiefs of Staff is authorized to communicate directly with the Director, 
DISA, and may task the Director, DISA to the extent authorized by the 
ASD(C3I).
    (2) Coordinate actions, as appropriate, with other DoD Components 
and those Departments and Agencies of Government having related 
functions.
    (3) Maintain liaison with other DoD Components and other Agencies of 
the Executive Branch for the exchange of information on programs and 
activities in the field of assigned responsibility.
    (4) Use established facilities and services in the Department of 
Defense or other Government Agencies, whenever practicable, to achieve 
maximum efficiency and economy.
    (b) The Secretaries of the Military Departments and the Directors of 
the Defense Agencies shall:
    (1) Provide support to include planning, programming, and budgeting; 
test and evaluation; operations and maintenance; and integrated 
logistics support for programs, projects, and systems for which the DISA 
is responsible.
    (2) Advise the Director, DISA, of funding shortfalls that would 
prevent effective operations and maintenance of existing systems, or 
prevent or delay scheduled implementation of new subsystems or projects.
    (3) Coordinate with the Director, DISA, on all programs and 
activities that include, or are related to, C3 and information systems 
for which the DISA has a primary or collateral responsibility. Provide 
to the DISA, for review and approval before execution, technical 
specifications, statements of work, and proposed contract changes 
impacting on configuration, cost, performance, or schedules of all 
systems for which the DISA is responsible. Obtain the DISA's concurrence 
on draft acquisition plans and request DISA representation on source 
selection advisory councils and source selection evaluation boards for 
C3 and information systems, subsystems, and projects.
    (4) Submit C3 and information systems requirements to the DISA, as 
appropriate.
    (5) Submit copies of all requirements involving development, 
acquisition, or modification of all tactical C3 systems or equipment, 
copies of all Test and Evaluation Master Plans for such materials, 
Fielding Plans, and such other reports, as required by DoD Directive 
4630.5, to the Director, Joint Tactical Command, Control, and 
Communications Agency.
    (6) Periodically review the efficiency, economy, and effectiveness 
of the DISA.

[[Page 1058]]

    (c) The Chairman of the Joint Chiefs of Staff shall:
    (1) Review DCS planning and programming documents, and assess their 
responsiveness to operational, developmental, and training requirements.
    (2) Periodically (not less than every 2 years), submit to the 
Secretary of Defense a report on DISA's responsiveness and readiness to 
support operating forces in the event of war or threat to national 
security, and other recommendations as appropriate.
    (3) Advise the Secretary of Defense on C3 and information systems 
requirements and priorities.
    (4) Develop and issue jointly with the ASD(C3I) guidance to the DISA 
and the Unified and Specified Commands that will serve as the basis for 
interrelationships between these organizations.
    (5) Provide for the participation of DISA in joint training 
exercises and monitor performance.



Sec. 362.7  Authority.

    The Director, DISA, is specifically delegated authority to:
    (a) Communicate directly with heads of the DoD Components and other 
Executive Departments and Agencies, as necessary, to carry out DISA's 
responsibilities and functions. Communications to the Commanders in 
Chief of the Unified and Specified Commands shall be coordinated as 
appropriate with the Chairman of the Joint Chiefs of Staff.
    (b) Obtain reports, information, advice, and assistance consistent 
with the policies and criteria of DoD Directives 4630.5 and 7750.5,\9\ 
as necessary, to carry out DISA-assigned responsibilities and functions.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 362.5(a)(2).
---------------------------------------------------------------------------

    (c) Exercise the administrative authorities in appendix A to part 
362 when delegated by the ASD(C3I).



Sec. 362.8  Administration.

    (a) The Director and the Deputy Director, DISA, shall be appointed 
by the Secretary of Defense.
    (b) The Military Departments shall assign military personnel to the 
DISA in accordance with approved authorizations and procedures for 
assignment to joint duty. The Chairman of the Joint Chiefs of Staff 
shall review and provide recommendations on the DISA joint manpower 
program to the ASD(C3I), as appropriate, for those functions where DISA 
is responsive to the Chairman of the Joint Chiefs of Staff.

            Appendix A to Part 362--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to the direction, authority, and control of the Secretary of 
Defense, and in accordance with DoD policies, Directives, Instructions, 
the Assistant Secretary of Defense for Command, Control, Communications, 
and Intelligence (ASD(C3I)), or in the absence of the ASD(C3I), the 
person acting for the ASD(C3I), is hereby delegated authority as 
required in the administration and operation of the DISA to:
    1. Exercise the powers vested in the Secretary of Defense by 5 
U.S.C. 301, 302(b), and 3101 on the employment, direction, and general 
administration of DISA civilian personnel.
    2. Fix rates of pay for wage-rate employees exempted from the 
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates 
established under the Coordinated Federal Wage System. In fixing such 
rates, the ASD(C3I), shall follow the wage schedule established by the 
DoD Wage Fixing Authority.
    3. Establish advisory committees and employ temporary or 
intermittent experts or consultants, as approved by the Secretary of 
Defense, for the performance of DISA functions consistent with the 10 
U.S.C. 173; 5 U.S.C. 3109(b); DoD Directive 5105.4,\1\ ``DoD Federal 
Advisory Committee Management Program,'' September 5, 1989; and the 
agreement between the Department of Defense and the Office of Personnel 
Management (OPM) on employment of experts and consultants, June 21, 
1977.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    4. Administer oaths of office incident to entrance into the 
Executive Branch of the Federal Government or any other oath required by 
law in connection with employment therein, in accordance with 5 U.S.C. 
2903, and designate in writing, as may be necessary, officers and 
employees of the DISA to perform this function.
    5. Establish a DISA Incentive Awards Board and authorize cash awards 
to, and incur necessary expenses for, the honorary recognition of 
civilian employees of the Government whose suggestions, inventions, 
superior accomplishments, or other personal efforts, including special 
acts or services, benefit or affect the DISA or its subordinate

[[Page 1059]]

activities, in accordance with 5 U.S.C. 4503, applicable OPM 
regulations, and DoD Directive 5120.15,\2\ ``Authority for Approval of 
Cash Honorary Awards for DoD Personnel,'' August 13, 1985.
---------------------------------------------------------------------------

    \2\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    6. In accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333, 
and 12356; and DoD Directive 5200.2,\3\ ``DoD Personnel Security 
Program,'' December 20, 1979; as appropriate:
---------------------------------------------------------------------------

    \3\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    a. Designate any position in the DISA as a ``sensitive'' position.
    b. Authorize, in case of an emergency, the appointment of a person 
to a sensitive position in the DISA for a limited period of time and for 
whom a full field investigation or other appropriate investigation, 
including the National Agency Check, has not been completed.
    c. Authorize the suspension, but not terminate the services, of a 
DISA employee in the interest of national security.
    d. Initiate investigations, issue personnel security clearances and, 
if necessary, in the interest of national security, suspend, revoke, or 
deny a security clearance for personnel assigned, detailed to, or 
employed by the DISA. Any action to deny or revoke a security clearance 
shall be taken in accordance with procedures prescribed in DoD 5200.2-
R,\4\ ``DoD Personnel Security Program,'' January 1987.
---------------------------------------------------------------------------

    \4\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    7. Act as agent for the collection and payment of employment taxes 
imposed by chapter 21 of the Internal Revenue Code of 1954, as amended; 
and, as such agent, make all determinations and certifications required 
or provided for under section 3122 of the Internal Revenue Code of 1954, 
as amended, and section 205(p) (1) and (2) of 42 U.S.C. (Social Security 
Act), as amended, with respect to DISA employees.
    8. Authorize and approve:
    a. Temporary duty travel for military personnel assigned or detailed 
to the DISA in accordance with Volume I, Joint Federal Travel 
Regulations.
    b. Travel for DISA civilian officers and employees in accordance 
with Volume II, Joint Travel Regulations.
    c. Invitational travel to non-DoD employees whose consultative, 
advisory, or other highly specialized technical services are required in 
a capacity that is directly related to, or in connection with, DISA 
activities, in accordance with Volume II, Joint Travel Regulations.
    d. Overtime work for DISA civilian employees in accordance with 
chapter 55, subpart V, of 5 U.S.C. and applicable OPM regulations.
    9. Approve the expenditure of funds available for travel by military 
personnel assigned or detailed to the DISA for expenses incident to 
attendance at meetings of technical, scientific, professional, or other 
similar organizations in such instances where the approval of the 
Secretary of Defense, or designee, is required by 37 U.S.C. 412, and 5 
U.S.C. 4110 and 4111.
    10. Develop, establish, and maintain an active and continuing 
Records Management Program pursuant to 44 U.S.C. 3102 and DoD Directive 
5015.2,\5\ ``Records Management Program,'' March 22, 1991.
---------------------------------------------------------------------------

    \5\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    11. Establish and use imprest funds for making small purchases of 
material and services, other than personal services, for the DISA, when 
it is determined more advantageous and consistent with the best 
interests of the Government, in accordance with DoD Directive 
7360.10,\6\ ``Disbursing Policies,'' January 17, 1989.
---------------------------------------------------------------------------

    \6\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    12. Authorize the publication of advertisements, notices, or 
proposals in newspapers, magazines, or other public periodicals as 
required for the effective administration and operation of the DISA 
consistent with 44 U.S.C. 3702.
    13. Establish and maintain appropriate property accounts for the 
DISA, and appoint Boards of Survey, approve reports of survey, relieve 
personal liability, and drop accountability for DISA property in the 
authorized property accounts that has been lost, damaged, stolen, 
destroyed, or otherwise rendered unserviceable, in accordance with 
applicable laws and regulations.
    14. Promulgate the necessary security regulations for the protection 
of property and places under the jurisdiction of the Director, DISA, 
pursuant to DoD Directive 5200.8,\7\ ``Security of Military 
Installations and Resources,'' July 29, 1980.
---------------------------------------------------------------------------

    \7\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    15. Establish and maintain, for the functions assigned, an 
appropriate publications system for the promulgation of common supply 
and service regulations, instructions, and reference documents, and 
changes thereto, pursuant to the policies and procedures prescribed in 
DoD 5025.1-M,\8\ ``DoD Directives System Procedures,'' December 1990.
---------------------------------------------------------------------------

    \8\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    16. Enter into support and service agreements with the Military 
Departments, other DoD Components, or other Government Agencies, as 
required, for the effective performance of DISA functions and 
responsibilities.

[[Page 1060]]

    17. Exercise the authority delegated to the Secretary of Defense by 
the Administrator of General Services on the disposal of surplus 
personal property.
    18. Enter into and administer contracts, directly or through a 
Military Department, a DoD contract administration services component, 
or other Federal Agency, as appropriate, for supplies, equipment, and 
services required to accomplish the mission of the DISA. To the extent 
that any law or Executive order specifically limits the exercise of such 
authority to persons at the Secretarial level of a Military Department, 
such authority shall be exercised by the appropriate Under Secretary or 
Assistant Secretary of Defense.
    19. Award contracts for the lease of commercial C3 capabilities as 
delegated in DoD Directive 5134.1,\9\ ``Under Secretary of Defense 
(Acquisition),'' August 8, 1989.
---------------------------------------------------------------------------

    \9\ See footnote 1 to section 3 of this appendix.
---------------------------------------------------------------------------

    20. Lease property under the control of the DISA under terms that 
will promote the national defense or that will be in the public 
interest, pursuant to 10 U.S.C. 2667.
    The ASD(C3I) may redelegate these authorities, as appropriate, and 
in writing, except as otherwise provided by law or regulation.
    These delegations of authority are effective June 25, 1991.



PART 367_ASSISTANT SECRETARY OF DEFENSE FOR HEALTH AFFAIRS--Table of 
Contents




Sec.
367.1 Purpose.
367.2 Applicability.
367.3 Responsibilities and functions.
367.4 Relationships.
367.5 Authorities.

    Authority: 10 U.S.C. 113 and 138.

    Source: 59 FR 29952, June 10, 1994, unless otherwise noted.



Sec. 367.1  Purpose.

    Pursuant to the authority vested in the Secretary of Defense by 10 
U.S.C. 113 and 138, this part updates the responsibilities, functions, 
relationships, and authorities of the ASD(HA), as prescribed herein.



Sec. 367.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Unified Combatant Commands, the Office of the Inspector General of the 
Department of Defense, the Defense Agencies, and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
Components'').



Sec. 367.3  Responsibilities and functions.

    The Assistant Secretary of Defense for Health Affairs, as the 
principal staff assistant and advisor to the Under Secretary of Defense 
for Personnel and Readiness (USD(P&R)) and the Secretary and Deputy 
Secretary of Defense for all DoD health policies, programs, and 
activities, shall effectively execute the Department's medical mission, 
which is to provide, and to maintain readiness to provide, medical 
services and support to members of the Armed Forces during military 
operations, and to provide medical services and support to members of 
the Armed Forces, their dependents, and others entitled to DoD medical 
care.
    (a) In carrying out these responsibilities, the ASD(HA) shall 
exercise authority, direction, and control over the medical personnel, 
facilities, programs, funding, and other resources within the Department 
of Defense, including, but not limited to:
    (1) Establishing policies, procedures, and standards that shall 
govern DoD medical programs.
    (2) Serving as program manager for all DoD health and medical 
resources. Preparing and submitting in the Department's planning, 
programming, and budgeting system (PPBS) a unified medical program and 
budget to provide resources for all medical activities within the 
Department of Defense. Consistent with applicable law, all funding for 
the DoD medical program, including operation and maintenance, 
procurement, and the Civilian Health and Medical Program of the 
Uniformed Services, but excluding funds for active and reserve medical 
military personnel, shall be accounted for in a single defense medical 
appropriations account. Funds for medical facility military construction 
shall be in a separate, single appropriations account.
    (3) Presenting and justifying the unified medical program and budget 
throughout the PPBS process, including representations before the 
Congress.

[[Page 1061]]

    (4) Co-chairing with the Director, Defense Research and Engineering, 
the Armed Services Biomedical Research Evaluation and Management 
Committee, which facilities consideration of DoD biomedical research.
    (5) Performing such other functions as the USD(P&R) and the 
Secretary of Defense may prescribe.
    (b) The ASD(HA) may not direct a change in the structure of the 
chain of command within a Military Department with respect to medical 
personnel and may not direct a change in the structure of the chain of 
command with respect to medical personnel assigned to that command.



Sec. 367.4  Relationships.

    (a) In the performance of assigned responsibilities and functions, 
the ASD(HA) shall serve under the authority, direction, and control of 
the USD(P&R) and shall:
    (1) Report directly to the USD(P&R).
    (2) Exercise authority, direction, and control over:
    (i) The Director, Office of Civilian Health and Medical Program of 
the Uniformed Services.
    (ii) The Director, Defense Medical Programs Activity.
    (iii) The Director, Armed Forces Institute of Pathology.
    (iv) The President, Uniformed Services University of the Health 
Sciences (USUHS), pursuant to the authority vested in the Secretary of 
Defense by 10 U.S.C. chapter 104, except that the authority to appoint 
the President of the USUHS is reserved to the Secretary of Defense.
    (v) Such other subordinate officials as may be assigned.
    (3) Consult, as appropriate, with the Comptroller of the Department 
of Defense (C, DoD) and the Director, Program Analysis and Evaluation, 
to ensure that medical planning, programming, and budgeting activities 
are integrated with the DoD PPBS. The C, DoD, shall allocate and 
reallocate the funds in the Defense Health Program account and the 
medical facility military construction account among the DoD Components 
in accordance with ASD(HA) instructions, as coordinated with the 
USD(P&R), and applicable law.
    (4) Obtain through the Chairman of the Joint Chiefs of Staff, 
submissions of the operational and other needs of the Commanders of the 
Unified Combatant Commands, and obtain submissions from the Secretaries 
of the Military Departments of their proposed elements of the medical 
unified program and budget, and integrate those submissions as 
appropriate.
    (5) Coordinate and exchange information with other OSD officials and 
the Heads of DoD Components having collateral or related functions.
    (6) Use existing facilities and services of the Department of 
Defense and other Federal and non-Federal Agencies, whenever 
practicable, to achieve maximum efficiency and economy.
    (b) Other OSD officials and the Heads of the DoD Components shall 
coordinate with the ASD(HA) on all matters related to the 
responsibilities and functions in Sec. 367.3.



Sec. 367.5  Authorities.

    The ASD(HA) is hereby delegated authority to:
    (a) Issue DoD Instructions, DoD publications, and one-time 
directive-type memoranda, consistent with DoD 5025.1-M \1\, that 
implement policy approved by the Secretary of Defense in assigned fields 
of responsibility. Instructions to the Military Departments shall be 
issued through the Secretaries of those Departments. Instructions to 
Unified Combatant Commands shall be communicated through the Chairman of 
the Joint Chiefs of Staff.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (b) Obtain reports, information, advice, and assistance, consistent 
with DoD Directive 8910.1 \2\ as necessary to carry out assigned 
functions.
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 367.5(a).
---------------------------------------------------------------------------

    (c) Communicate directly with the Heads of the DoD Components. 
Communications to the Commanders of the Unified Combatant Commands shall 
be coordinated through the Chairman of the Joint Chiefs of Staff.
    (d) Make determinations on the uniform implementation of laws on 
separation from the Military Departments

[[Page 1062]]

due to physical disability as prescribed in DoD Directive 1332.18 \3\.
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 367.5(a).
---------------------------------------------------------------------------

    (e) Develop, issue, and maintain regulations, with the coordination 
of the Military Departments, as necessary and appropriate to fulfill the 
Secretary of Defense's responsibility to administer 10 U.S.C. chapter 
55.
    (f) Establish arrangements for DoD participation in nondefense 
governmental programs for which the ASD(HA) has been assigned primary 
cognizance.
    (g) Communicate with other Government officials, representatives of 
the legislative branch, members of the public, and representatives of 
foreign governments, as appropriate, in carrying out assigned functions.



PART 371_DEFENSE PRISONER OF WAR/MISSING IN ACTION OFFICE (DPMO)--Table 
of Contents




Sec.
371.1 Purpose.
371.2 Applicability.
371.3 Mission.
371.4 Organization and management.
371.5 Responsibilities and functions.
371.6 Relationships.
371.7 Authorities.
371.8 Administration.

    Authority: 10 U.S.C. 113 and 191.

    Source: 58 FR 48308, Sept. 15, 1993, unless otherwise noted.



Sec. 371.1  Purpose.

    Under the authority vested in the Secretary of Defense by 10 U.S.C. 
113 and 191, this part establishes the DPMO within the Department of 
Defense, with the mission, organization, responsibilities, functions, 
relationships, and authorities prescribed herein.



Sec. 371.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD); 
the Military Departments; the Chairman of the Joint Chiefs of Staff and 
the Joint Staff; the Unified and Specified Combatant Commands; the 
Inspector General of the Department of Defense; the Defense Agencies; 
and the DoD Field Activities (hereafter referred to collectively as 
``the DoD Components'').



Sec. 371.3  Mission.

    The DPMO provides centralized management of prisoner of war/missing 
in action (POW/MIA) affairs within the Department of Defense.



Sec. 371.4  Organization and management.

    The DPMO is hereby established as a DoD Field Activity under the 
authority, direction, and control of the Assistant Secretary of Defense 
for Regional Security Affairs (ASD(RSA)). The DPMO shall consist of a 
Director and such subordinate elements as the Director establishes, 
within the resources authorized by the Secretary of Defense.



Sec. 371.5  Responsibilities and functions.

    (a) The Director, Defense Prisoner of War/Missing in Action Office 
shall:
    (1) Organize, direct, and manage the DPMO and all assigned 
resources.
    (2) Advise and assist the Under Secretary of Defense for Policy 
(USD(P)) and the ASD(RSA) within assigned mission, responsibilities, and 
functions.
    (3) Support the USD(P) and the ASD(RSA) in the execution of their 
responsibilities to develop, coordinate, and oversee the implementation 
of POW/MIA policy.
    (4) Serve as the DoD focal point for POW/MIA matters.
    (5) Provide DoD participation in the conduct of negotiations with 
officials of foreign governments in efforts to achieve the fullest 
possible accounting of missing American service members.
    (6) Assemble and analyze information on U.S. military and civilian 
personnel who are, or were, prisoners of war or missing in action.
    (7) Maintain data bases on U.S. military and civilian personnel who 
are, or were, prisoners of war or missing in action.
    (8) Declassify DoD documents for disclosure and release in 
accordance with section 1082 of Public Law 102-190 and Executive Order 
12812, 57 FR 32879, 3 CFR, 1992 Comp., p. 311.
    (9) Maintain open channels of communication on POW/MIA matters 
between the Department of Defense and the Congress, POW/MIA families, 
and

[[Page 1063]]

veteran organizations, through periodic consultations and other 
appropriate measures.
    (10) Provide appropriate representation to established POW/MIA-
related interagency fora.
    (11) Provide a statement of intelligence collection requirements to 
the Defense Intelligence Agency, for which the DPMO identifies a need.
    (12) Perform such other functions as the ASD(RSA) may prescribe.
    (b) The Assistant Secretary of Defense for Regional Security Affairs 
shall:
    (1) Exercise authority, direction, and control over the DPMO.
    (2) Recommend policies and resources for the administration of the 
DPMO to the Under Secretary of Defense for Policy.



Sec. 371.6  Relationships.

    (a) In the performance of assigned responsibilities and functions, 
the Director, DPMO, shall:
    (1) Report directly to the ASD(RSA).
    (2) Coordinate and exchange information with other OSD officials, 
heads of the DoD Components, and other Federal officials having 
collateral or related functions.
    (3) Use existing facilities and services of the Department of 
Defense and other Federal Agencies, when practicable, to avoid 
duplication and to achieve maximum efficiency and economy.
    (b) Other OSD officials and heads of the DoD Components shall 
coordinate with the Director, DPMO, on all matters related to the 
responsibilities and functions of the DPMO.



Sec. 371.7  Authorities.

    The Director, DPMO, is hereby delegated authority to:
    (a) Obtain reports, information, advice, and assistance, consistent 
with the policies and criteria of DoD Directive 8910.1,\1\ as deemed 
necessary.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, U.S. Department of Commerce, 5285 Port Royal Road, 
Springfield, VA 22161.
---------------------------------------------------------------------------

    (b) Communicate directly with the heads of the DoD Components. 
Communications to the Commanders of Unified and Specified Combatant 
Commands shall be transmitted through the Chairman of the Joint Chiefs 
of Staff.
    (c) Communicate with other Government officials, representatives of 
the legislative branch, members of the public, and representatives of 
foreign governments, as appropriate, in carrying out assigned functions.



Sec. 371.8  Administration.

    (a) The DPMO shall be authorized such personnel, facilities, funds, 
and other resources as the Secretary of Defense deems necessary.
    (b) The Military Departments shall assign military personnel to the 
DPMO in accordance with approved authorizations and established 
procedures for assignment to joint duty.
    (c) Administrative support required for the DPMO shall be provided 
by the Director, Washington Headquarters Services.



PART 378_ASSISTANT TO THE SECRETARY OF DEFENSE FOR INTELLIGENCE OVERSIGHT 
(ATSD(IO))--Table of Contents




Sec.
378.1 Purpose.
378.2 Applicability.
378.3 Definition.
378.4 Responsibilities and functions.
378.5 Relationships.
378.6 Authorities.

    Authority: 10 U.S.C. 113.

    Source: 59 FR 43475, Aug. 24, 1994, unless otherwise noted.



Sec. 378.1  Purpose.

    Under the authority vested in the Secretary of Defense by 10 U.S.C. 
113, this part updates the responsibilities, functions, relationships, 
and authorities of the ATSD(IO), as prescribed herein.



Sec. 378.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Unified Combatant Commands, the Office of the Inspector General of the 
Department of Defense, the Defense Agencies, and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
Components'').

[[Page 1064]]



Sec. 378.3  Definition.

    Propriety. Refers to the standards for intelligence activities 
promulgated in Executive orders, Presidential Directives, and DoD 
Directives. Other terms used herein are defined in E.O. 12333, 3 CFR, 
1981 Comp., p. 200; DoD Directive 5240.1 \1\, and DoD 5240.1-R \2\.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 378.3.
---------------------------------------------------------------------------



Sec. 378.4  Responsibilities and functions.

    The Assistant to the Secretary of Defense for Intelligence Oversight 
shall be responsible for the independent oversight of all intelligence 
activities in the Department of Defense. In this capacity, the ATSD(IO) 
shall ensure that all activities performed by intelligence units and all 
intelligence activities performed by non-intelligence units, are 
conducted in compliance with Federal law and other laws as appropriate, 
Executive orders and Presidential Directives, and DoD Directives System 
issuances. In the exercise of this responsibility, the ATSD(IO) shall:
    (a) Develop intelligence oversight policy and, in coordination with 
the General Counsel of the Department of Defense (GC, DoD), issue 
intelligence oversight guidance to the DoD intelligence components, 
including regulatory guidance implementing intelligence oversight 
aspects of E.O. 12333.
    (b) Review, in consultation with the GC, DoD, all allegations that 
raise questions of the legality or propriety of intelligence activities 
in the Department of Defense.
    (c) Investigate intelligence activities that raise questions of 
legality or propriety.
    (d) Conduct vigorous and independent inspections of the DoD 
Components that engage in intelligence activities for the purpose of 
verifying that personnel are familiar and in compliance with E.O. 12333 
and its DoD implementing documents. At the request of senior leadership 
of the Department, and as practicable, the ATSD(IO) will assess and 
evaluate the performance of DoD's intelligence activities during the 
course of scheduled inspections and site visits. Reports in these areas 
of special interest will be provided to the requesting official and the 
Secretary of Defense for information.
    (e) Monitor investigations and inspections conducted by the DoD 
Components related to intelligence activities, evaluate the findings 
and, if appropriate, submit recommendations for corrective action to the 
Secretary and Deputy Secretary of Defense.
    (f) Report the following to the Secretary and Deputy Secretary of 
Defense, and the Intelligence Oversight Board of the President's Foreign 
Intelligence Advisory Board, established under E.O. 12863, 3 CFR, 1993 
Comp., p. 632, at least quarterly, in consultation with the GC, DoD:
    (1) Any significant oversight activities undertaken; and
    (2) Any DoD intelligence activities of questionable legality or 
propriety, the investigative action on them, an evaluation of completed 
investigations, and the action taken on completed investigations.
    (g) Participate as a member of the Defense Counterintelligence Board 
(DoD Directive 5240.2 \3\).
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 378.3
---------------------------------------------------------------------------

    (h) Pursuant to DoD Directive 5240.12 \4\, review and conduct an 
annual financial audit of all funds generated by DoD Intelligence 
Commercial Activities, and report the results to the Assistant Secretary 
of Defense for Command, Control, Communications, and Intelligence.
---------------------------------------------------------------------------

    \4\ See footnote 1 to Sec. 378.3
---------------------------------------------------------------------------

    (i) Review DoD clandestine intelligence activities to ensure 
compliance with special constraints and controls.
    (j) Evaluate the effectiveness of the DoD intelligence components' 
efforts to protect HUMINT sources, in accordance with DoD Directive S-
5205.1 \5\.
---------------------------------------------------------------------------

    \5\ Classified document, not releaseable to the public.
---------------------------------------------------------------------------

    (k) Participate in the Sensitive Reconnaissance Operations approval 
process.
    (l) Conduct liaison with Federal intelligence and law enforcement 
agencies (e.g., Central Intelligence Agency, Federal Bureau of 
Investigation, and Drug Enforcement Administration) at the national 
level and field locations, as required, to ensure DoD intelligence 
activities and DoD intelligence support

[[Page 1065]]

to law enforcement agencies are being conducted properly.
    (m) Review the DoD sensitive support provided to the DoD Components 
and other Federal Agencies, pursuant to DoD Directive S-5210.36 \6\, to 
ensure compliance with DoD policy.
---------------------------------------------------------------------------

    \6\ See footnote 5 to Sec. 378.4(j).
---------------------------------------------------------------------------

    (n) Coordinate, as appropriate, with the DoD Inspector General (DoD 
IG) on matters relating to the DoD IG's area of responsibility in 
accordance with DoD Directive 5106.1 \7\.
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 378.3.
---------------------------------------------------------------------------

    (o) Perform such other functions as the Secretary of Defense may 
prescribe.



Sec. 378.5  Relationships.

    (a) In the performance of assigned responsibilities and functions, 
the ATSD(IO) shall serve under the authority, direction, and control of 
the Secretary of Defense, and shall:
    (1) Report directly to the Secretary and Deputy Secretary of 
Defense.
    (2) Coordinate and exchange information with other OSD officials, 
heads of the DoD Components, and other Federal officials having 
collateral or related functions.
    (3) Use existing facilities and services of the Department of 
Defense and other Federal Agencies, when practicable, to avoid 
duplication and to achieve maximum efficiency and economy.
    (b) Other OSD officials and heads of the DoD Components shall 
coordinate with the ATSD(IO) on all matters related to the 
responsibilities and functions cited in Sec. 378.4.



Sec. 378.6  Authorities.

    The ATSD(IO) is hereby delegated authority to:
    (a) Obtain reports, information, advice, and assistance, consistent 
with DoD Directive 8910.1 \8\, as necessary, in carrying out assigned 
functions.
---------------------------------------------------------------------------

    \8\ See footnote 1 to Sec. 378.3
---------------------------------------------------------------------------

    (b) Communicate directly with the heads of the DoD Components and, 
with notification to the Chairman of the Joint Chiefs of Staff, to the 
Commanders of the Unified Combatant Commands, as necessary, in carrying 
out assigned functions.
    (c) Request such temporary assistance from the DoD Components as may 
be required for the conduct of inspections or investigations, to include 
personnel, facilities, and other services. Requests for needed support 
shall be made in accordance with established procedures.
    (d) Communicate directly with the Intelligence Oversight Board of 
the President's Foreign Intelligence Advisory Board, the Director of 
Central Intelligence, other Federal officials, representatives of the 
legislative branch, members of the public, and representatives of 
foreign governments, as appropriate, in carrying out assigned functions.
    (e) Have complete and unrestricted access to all available 
intelligence-related information, regardless of classification or 
compartmentation, from all DoD Components and personnel, as required, in 
carrying out assigned functions. This includes specifically the 
authority to:
    (1) Require an Inspector General or other cognizant investigative 
official of a DoD Component to report allegations of improprieties or 
illegalities of intelligence activities by, or within, a DoD Component; 
and
    (2) Obtain information on the status, proceedings, and findings or 
to obtain copies of reports of investigations of such allegations.
    (f) Deal directly with the head of the element inspected or 
investigated, conduct interviews, take depositions, and examine records 
incident to an inspection or investigation of any DoD Component, as 
required, in carrying out assigned functions.



PART 383a_DEFENSE COMMISSARY AGENCY (DeCA)--Table of Contents




Sec.
383a.1 Purpose.
383a.2 Applicability.
383a.3 Mission.
383a.4 Organization.
383a.5 Responsibilities and functions.
383a.6 Relationships.
383a.7 Authority.
383a.8 Administration.

Appendix to Part 383a--Delegations of Authority

    Authority: 10 U.S.C. 136.

[[Page 1066]]


    Source: 55 FR 49279, Nov. 27, 1990, unless otherwise noted.



Sec. 383a.1  Purpose.

    Pursuant to the authority vested in the Secretary of Defense under 
title 10, United States Code, this part establishes the Defense 
Commissary Agency (DeCA) and the Defense Commissary Board (DCB), with 
responsibilities, functions, and authorities as prescribed herein.



Sec. 383a.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments; the Chairman, Joint Chiefs of Staff and Joint 
Staff; the Unified and Specified Commands; the Inspector General of the 
Department of Defense (IG, DoD); the Defense Agencies; and the DoD Field 
Activities (hereafter referred to collectively as ``DoD Components''). 
The term ``Military Services,'' as used herein, refers to the Army, 
Navy, Air Force, and Marine Corps.



Sec. 383a.3  Mission.

    (a) The mission of the DeCA is to:
    (1) Provide an efficient and effective worldwide system of 
commissaries for the resale of groceries and household supplies at the 
lowest practical price (consistent with quality) to members of the 
Military Services, their families, and other authorized patrons, while 
maintaining high standards for quality, facilities, products, and 
service.
    (2) Provide a peacetime training environment for food supply 
logisticians needed in wartime and, as circumstances dictate, troop 
issue subsistence support to military dining facilities consistent with 
Service needs.
    (b) The mission of the DCB is to serve as a forum for the discussion 
of issues about the commissary services provided by the DeCA and to make 
related policy recommendations to the Assistant Secretary of Defense 
(Production and Logistics) (ASD(P&L)).



Sec. 383a.4  Organization.

    (a) The DeCA is established as an Agency of the Department of 
Defense under the direction, authority, and control of the ASD(P&L). It 
shall consist of a Director of such subordinate organizational elements 
as are established by the Director.
    (b) The DCB is established as a committee reporting to the ASD 
(P&L). Its membership shall consist of the following:
    (1) The Director, DeCA, who shall serve as Chair.
    (2) A representative of the Assistant Secretary of Defense (Force 
Management and Personnel) (ASD(FM&P)).
    (3) A representative of the Chairman, Joint Chiefs of Staff (CJCS).
    (4) One military officer and one enlisted representative from each 
of the Military Services appointed by the Secretaries of the Military 
Departments.
    (5) The Director, DeCA, may invite other representatives to attend 
DCB meetings, as appropriate.
    (c) The Director shall designate an Executive Secretary for the 
Board.

[55 FR 49279, Nov. 27, 1990, as amended at 63 FR 33248, June 18, 1998]



Sec. 383a.5  Responsibilities and functions.

    (a) The Director, Defense Commissary Agency (DeCA), shall:
    (1) Organize, direct, and manage the DeCA and all assigned 
resources; procure assigned items; and administer, supervise, and 
control all programs and activities assigned to the DeCA.
    (2) Plan, program, budget, design, manage, and ensure the execution 
of the commissary facilities' construction, modification, and repair 
programs.
    (3) Provide and operate facilities under standards consistent with 
those used for commercial food stores.
    (4) Develop and administer plans and programs to provide peacetime 
training for military personnel, as appropriate.
    (5) Develop and administer plans and programs to provide troop issue 
subsistence support to appropriate dining facilities, tactical field 
exchanges for deployed mission support, and management of subsistence 
war readiness materiel in peacetime and wartime, as required.
    (6) Provide advice to the ASD(P&L) on DoD policies about the 
operation of commissaries and related matters.

[[Page 1067]]

    (7) Plan and direct use of commissary stocks to support 
mobilization, as required.
    (8) Establish and administer a civilian career management program to 
include referral services and development programs for commissary 
management personnel.
    (9) Perform such other functions as the ASD(P&L) may direct.
    (b) The Defense Commissary Board (DCB) shall meet periodically, and 
not less than annually. For the purpose of providing advice, it shall:
    (1) Consider issues about DeCA operations, services, and resources 
and make recommendations about DeCA practices, problems, policies, and 
programs.
    (2) Facilities the exchange of information among the Director, DeCA, 
and the Military Departments.
    (3) Make recommendations on the integration and prioritization of 
the commissary construction program.
    (4) Perform such other advisory functions as ASD(P&L) may direct.
    (c) The Assistant Secretary of Defense (Production and Logistics) 
(ASD(P&L)) shall:
    (1) Recommend to the Secretary and the Deputy Secretary of Defense 
and the USD(A) policies and resources for the administration of the DeCA 
and its programs.
    (2) Provide policy guidance and management direction to the 
Director, DeCA.
    (3) Establish standards and issue guidelines for military commissary 
operations, including, but not limited to, the following areas:
    (i) Funding.
    (ii) Commissary establishment/disestablishment.
    (iii) Pricing and surcharges.
    (iv) Categories of items.
    (v) Reporting requirements and preparation of ``The DoD Commissary 
Operations Report'' (RCS DD-FMP(A)1187).
    (4) In coordination with CJCS, make arrangements for Commanders of 
Unified Commands to assume temporary operational control of commissaries 
in wartime or periods of heightened alert.
    (d) The Assistant Secretary of Defense (Force Management and 
Personnel) (ASD(FM&P)) shall be responsible for advising the ASD(P&L) on 
commissary policy to ensure that it is consistent with policies on 
recruitment and retention.
    (e) The Comptroller of the Department of Defense (C, DoD) shall 
advise the ASD(P&L) on accounting, budgeting, funding, cash management, 
debt management, and pricing and surcharge policy for the DeCA.
    (f) The Secretaries of the Military Departments shall provide such 
facilities, physical security, logistics, and administrative support as 
required for effective operation of the military commissary program as 
agreed to by the DeCA and cognizant component Commands under inter-
Service support and servicing agreements.



Sec. 383a.6  Relationships.

    (a) In the performance of assigned responsibilities and functions, 
the Director, DeCA, shall:
    (1) Have free and direct access to, and communicate with, the DoD 
Components and other Executive Departments and Agencies concerning 
commissary activities, as necessary.
    (2) Maintain appropriate liaison with other DoD Components, Agencies 
of the Executive branch, forcing governments, and private sector 
organizations for the exchange of information on programs and activities 
in the field of assigned responsibilities.
    (3) Use established facilities and services of the Department of 
Defense and other Federal Agencies, whenever practicable, to avoid 
duplication and to achieve an appropriate balance of modernization, 
efficiency, economy, and customer support.
    (4) Consult and coordinate with other governmental and 
nongovernmental agencies on matters related to the mission assigned to 
the DeCA.
    (b) The Secretaries of the Military Departments and Heads of other 
DoD Components shall:
    (1) Provide assistance to the Director, DeCA, in carrying out the 
responsibilities and functions relating to military commissaries.
    (2) Coordinate with the Director, DeCA, on programs and activities 
that include or are related to military commissaries.

[[Page 1068]]



Sec. 383a.7  Authority.

    The Director, DeCA is hereby delegated authority to:
    (a) Enter into and administer contracts, directly or through a 
Military Department, a DoD contract administration services component, 
or other Government Department or Agency, in accordance with applicable 
laws, DoD regulations, the FAR and the DFARS for supplies, equipment, 
and services required to accomplish the mission of the DeCA.
    (b) Prescribe procedures, standards, and practices for the 
Department of Defense governing he execution of assigned 
responsibilities and functions.
    (c) Enter into agreements with the Military Departments or other 
Government entities, as required for the effective performance of the 
military commissary program.
    (d) Obtain reports, information, advice, and assistance from other 
DoD Components consistent with the policies and criteria of DoD 
Directive 7750.5 \1\, as may be necessary for the performance of 
assigned functions and responsibilities.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Rond, Springfield, VA 22161.
---------------------------------------------------------------------------

    (e) Establish new DeCA facilities or use existing facilities of the 
Military Departments, as deemed necessary, for improved effectiveness 
and economy.
    (f) Exercise the operational and administrative authorities 
contained in the appendix to this part.



Sec. 383a.8  Administration.

    (a) The Director and Deputy Director(s) of the DeCA shall be 
appointed by the Secretary of Defense.
    (b) The DeCA shall be authorized such personnel, facilities, funds, 
and other administrative support as the Secretary of Defense deems 
necessary.
    (c) The Military Departments shall assign military personnel to the 
DeCA in accordance with approved authorizations and procedures for 
assignment to joint duty.
    (d) Programming, budgeting, funding, procuring, auditing, 
accounting, pricing, and reporting activities of the DeCA shall be in 
accordance with established DoD policies and procedures.
    (e) Appropriated funds shall be used to finance the operating costs 
of the DeCA with the exception of operating costs authorized for payment 
from trust revolving funds. A stock fund will be used to finance all 
inventories procured for resale.

             Appendix to Part 383a--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to the direction, authority, and control of the Secretary of 
Defense, and in accordance with DoD policies, Directives, and 
Instructions, the Director, DeCA is hereby delegated authority as 
required in the administration and operation of the DeCA to:
    1. Establish advisory committees and employ part-time advisers, as 
approved by the Secretary of Defense, for the performance of DeCA 
functions pursuant to 10 U.S.C. 173 Public Law 92-463, ``Federal 
Advisory Committee Act''; and DoD Directive 5105.4 \1\ ``Department of 
Defense Federal Advisory Committee Management Program,'' September 5, 
1989.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    2. Designate any position in the DeCA as a ``sensitive'' position, 
in accordance with 5 U.S.C. 7532; Executive Orders 10450, 12333, and 
12356; and DoD Directive 5200.2 \2\, ``DoD Personnel Security Program,'' 
December 20, 1979, as appropriate.
---------------------------------------------------------------------------

    \2\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    3. Authorize and approve overtime work for DeCA civilian personnel 
in accordance with 5 U.S.C. chapter 55, subchapter V, and applicable OPM 
regulations.
    4. Authorize and approve:
    a. Travel of DeCA civilian personnel in accordance with Joint Travel 
Regulations, Volume 2, ``DoD Civilian Personnel.''
    b. Temporary duty travel for military personnel assigned or detailed 
to the DeCA in accordance with Joint Federal Travel Regulations, Volume 
1, ``Uniformed Service Members.''
    c. Invitational travel to persons serving without compensation whose 
consultative, advisory, or other highly specialized technical services 
are required in a capacity that is directly related to or in connection 
with, DeCA activities, pursuant to 5 U.S.C. 5703.
    5. Approve the expenditure of funds available for travel by military 
personnel assigned or detailed to the DeCA for expenses regarding 
attendance at meetings of technical, scientific, professional, or other 
similar organizations in such instances when the

[[Page 1069]]

approval of the Secretary of Defense, or designee, in required by law 
(37 U.S.C. 412 and 5 U.S.C 4110 and 4111). This authority cannot be 
redelegated.
    6. Develop, establish, and maintain in active and continuing Records 
Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 5015.2 
\3\, ``Records Management Program,'' September 17, 1980.
---------------------------------------------------------------------------

    \3\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    7. Establish and use imprest funds for making small purchases of 
material and services, other than personal services, for the DeCA when 
it is determined more advantageous and consistent with the best 
interests of the Government, in accordance with DoD Directive 7360.104 
\4\, ``Disbursing Policies,'' January 17, 1989.
---------------------------------------------------------------------------

    \4\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    8. Authorize the publication of advertisements, notices, or 
proposals in newspapers, magazines, or other public periodicals, as 
required for the effective administration and operation of the DeCA, 
consistent with 44 U.S.C. 3702.
    9. Establish and maintain appropriate property accounts for the DeCA 
and appoint Boards of Survey, approve reports of survey, relieve 
personal liability, and drop accountability for DeCA property contained 
in the authorized property accounts that has been lost, damaged, stolen, 
destroyed, or otherwise rendered unserviceable, in accordance with 
applicable laws and regulations.
    10. Promulgate the necessary security regulations for the protection 
of property and places under the jurisdiction of the Director, DeCA, 
pursuant to DoD Directive 5200.8 \5\, ``Security of Military 
Installations and Resources,'' July 29, 1980.
---------------------------------------------------------------------------

    \5\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    11. Establish and maintain, for the functions assigned, a 
publications system for the promulgation of common supply and service 
regulations, instructions, and reference documents, and changes thereto, 
pursuant to the policies and procedures prescribed in DoD 5025.1-M \6\ 
``Department of Defense Directives System Procedures,'' April 1981.
---------------------------------------------------------------------------

    \6\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    12. Enter into support and service agreements with the Military 
Departments, other DoD Components, Government Agencies, and foreign 
governments, as required for the effective performance of DeCA functions 
and responsibilities.
    13. Lease property under the control of the DeCA, under terms that 
will promote the national defense or that will be in the public 
interest, pursuant to 10 U.S.C. 2667.
    14. Exercise the powers vested in the Secretary of Defense by 5 
U.S.C. 301, 302(b), 3101, and 5107 on the employment, direction, and 
general administration of DeCA civilian personnel.
    15. Fix rates of pay of wage-rate employees exempted from the 
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates 
established under the Combined Federal Wage System. In fixing such 
rates, the Director, DeCA, shall follow the wage schedule established by 
the DoD Wage Fixing Authority.
    16. Administer oaths of office to those entering the Executive 
branch of the Federal Government or any other oath required by law in 
connection with employment therein, in accordance with 5 U.S.C. 2903, 
and designate in writing, as may be necessary, officers and employees of 
the DeCA to perform this function.
    17. Establish a DeCA Incentive Awards Board, and pay cash awards to, 
and incur necessary expenses for the honorary recognition of, civilian 
employees of the Government whose suggestions, inventions, superior 
accomplishments, or other personal efforts, including special acts or 
services, benefit or affect the DeCA, in accordance with 5 U.S.C. 4503, 
OPM regulations, and DoD Directive 5120.15 \7\, ``Authority for Approval 
of Cash Honorary Awards for DoD Personnel,'' August 13, 1985.
---------------------------------------------------------------------------

    \7\ See footnote 1 to paragraph 1 of this appendix.
---------------------------------------------------------------------------

    18. Maintain an official seal and attest to the authenticity of 
official DeCA records under that seal.
    The Director, DeCA may redelegate these authorities as appropriate, 
and in writing, except as otherwise specifically indicated above or as 
otherwise provided by law or regulation.



PART 388_BALLISTIC MISSILE DEFENSE ORGANIZATION (BMDO)--Table of Contents




Sec.
388.1 Purpose.
388.2 Applicability.
388.3 Mission.
388.4 Organization and management.
388.5 Functions and responsibilities.
388.6 Relationships.
388.7 Authorities.
388.8 Administration.

Appendix A to Part 388--Delegations of Authority

    Authority: 10 U.S.C. 113.

    Source: 59 FR 43477, Aug. 24, 1994, unless otherwise noted.



Sec. 388.1  Purpose.

    Under the authority vested in the Secretary of Defense by 10 U.S.C. 
113, this part establishes the BMDO as an

[[Page 1070]]

agency of the Department of Defense with the responsibilities, 
functions, relationships, and authorities as prescribed herein.



Sec. 388.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Chairman of the Joint Chiefs of Staff, the 
Unified Combatant Commands, the Office of the Inspector General of the 
Department of Defense, the Defense Agencies, and the DoD Field 
Activities (hereafter referred to collectively as ``the DoD 
Components'').



Sec. 388.3  Mission.

    (a) BMDO shall manage, direct, and execute the Ballistic Missile 
Defense Program (BMDP) to achieve the following objectives:
    (1) Enable deployment of an effective and rapidly relocatable 
advanced theater missile defense capability to protect forward-deployed 
and expeditionary elements of the Armed Forces of the United States as 
well as friends and allies of the United States;
    (2) Develop options for, and deploy when directed, an antiballistic 
missile (ABM) system that is capable of providing effective defense of 
the U.S. homeland against limited attacks of ballistic missiles, 
including accidental, unauthorized launches or deliberate attacks;
    (3) Demonstrate advanced technologies--as options for enhancing 
initial BMD systems--such as space-based defenses and their associated 
sensors that could provide an overlay to ground-based interceptors; and
    (4) Continue programs of basic and applied research to develop 
follow-on technologies for both near-term and future technology 
insertion options and new system options to sustain a highly effective 
missile defense capability.
    (b) The BMDP shall provide the basis for informed decisions 
regarding development, production, and deployment milestones, and shall 
be carried out in full consultation and, where appropriate, with 
participation of our allies. The program shall be conducted in 
compliance with all existing international agreements and treaty 
obligations and shall utilize nonnuclear weapon technologies to achieve 
the deployments in paragraphs (a)(1) and (a)(2) of this section. The 
BMDP shall focus on the development, acquisition, and integration of 
theater missile defenses and strategic defenses against ballistic 
missile threats to the United States.



Sec. 388.4  Organization and management.

    (a) BMDO shall consist of a Director and such subordinate 
organizational elements as are established by the Director within 
resources authorized by the Secretary of Defense. The Director, BMDO, 
shall serve also as the BMD Acquisition Executive (BMDAE) for BMDO-
funded programs and/or projects.
    (b) The Under Secretary of Defense for Acquisition and Technology 
(USD(A&T)), as the Defense Acquisition Executive (DAE), shall provide 
DoD oversight and guidance for the BMD acquisition program, and shall 
conduct formal reviews, including Defense Acquisition Board milestone 
reviews, for BMDPs. All such reviews shall emphasize streamlined 
acquisition strategies. The USD(A&T) shall provide oversight for the BMD 
technology base activities contained in the BMDP.
    (c) A BMD Acquisition Review Council (BMDARC) may be established by 
the BMDAE to assist the BMDAE to:
    (1) Review BMDP progress in preparation for acquisition milestone 
decisions;
    (2) Resolve critical programmatic and technical issues; and
    (3) Determine specific program directions.
    (4) The Service Acquisition Executives (SAEs) and Vice Chiefs of 
Staff of the Services shall provide representatives to the BMDARC. 
Membership shall also include representatives of the Vice Chairman of 
the Joint Chiefs of Staff and Commanders of the Unified Combatant 
Commands, as necessary.



Sec. 388.5  Functions and responsibilities.

    The Director, BMDO, is responsible for BMD programmatic policy, 
requirements, priorities, systems, resources, and programs, and is 
responsible and accountable for the research, development, and 
transition of BMD systems

[[Page 1071]]

to the Military Departments and operations by the Combatant Commands. 
The Director shall:
    (a) Organize, direct, and manage BMDO and all assigned resources and 
activities; provide for the procurement and fielding of assigned 
systems; and administer and supervise all programs, services, and items 
under the BMDP to include but not be limited to:
    (1) Theater missile defense systems;
    (2) The U.S. ballistic missile defense systems; and
    (3) Other antiballistic missile systems or upgrades as may be 
assigned by the USD(A&T).
    (b) Develop programmatic policies and issue program guidance and 
direction to the DoD Components consistent with U.S. national security 
policy.
    (c) Establish the BMD management network including BMDO, the 
Services, and other Agencies to execute all program activities; and 
delegate appropriate authority to key individuals to ensure successful 
program execution and integration.
    (d) Establish the systems and procedures necessary to coordinate 
integration into the overall BMDP of the major BMD acquisition programs 
and other acquisition programs that directly relate to the BMDP's 
objectives for development and deployment.
    (e) Develop systems' standards and procedures for the administration 
and management of approved BMD plans and programs; establish program 
goals and objectives; set priorities; and evaluate BMDP activities of 
DoD Components and, as appropriate, those of other Federal Agencies.
    (f) Prepare the BMDP objectives memoranda and budget submissions in 
coordination with appropriate DoD Components; make determinations 
regarding priorities and resources; provide recommendations on program 
budget decisions to the USD(A&T), Comptroller of the Department of 
Defense, and Director, Program Analysis and Evaluation, for 
incorporation into the planning, programming, and budgeting system 
process; and initiate and implement congressional reprogramming actions.
    (g) Make such determinations regarding priorities and resources in 
coordination with appropriate DoD Components to include the Joint 
Requirements Oversight Council, as may be required to achieve approved 
program objectives and to enable the incremental development and 
deployment of BMD systems for U.S. Forces, the United States, and 
allies.
    (h) In coordination with the USD(A&T) and appropriate DoD officials, 
identify Military Department, Defense Agency, and BMDO responsibilities 
for program execution, and in such cases where source-selection is not 
delegated to the Military Departments and Defense Agencies, retain that 
authority within BMDO.
    (i) Develop mechanisms for coordinating BMDPs with other DoD 
research, development, test, and evaluation efforts.
    (j) Oversee, in coordination with appropriate DoD Components, the 
participation of U.S. allies and friends in the BMD technical 
cooperation programs.
    (k) Provide periodic program reviews and milestone decision 
information to the DAE, as well as to the BMDARC.
    (l) Serve as principal DoD official responsible for presenting the 
BMDP budget to the Congress.
    (m) Ensure that jointly funded programs have been reviewed by 
appropriate SAEs prior to initiating programmatic discussions with the 
USD(A&T).
    (n) Serve as principal public spokesperson for the BMDP.
    (o) Promote coordination, cooperation, and mutual understanding 
within the Department of Defense and between the Department of Defense 
and other Federal Agencies, and the civilian community with respect to 
BMD matters.
    (p) Serve on boards, committees, and other groups pertaining to BMD 
activities, functions, and responsibilities.
    (q) Establish internal procedures for compliance with the ABM Treaty 
and other Arms Control Agreements, pursuant to DoD Directive 2060.1.
    (r) Perform such other duties as the USD(A&T) may prescribe.



Sec. 388.6  Relationships.

    (a) In the performance of assigned functions, the Director, BMDO, 
shall:

[[Page 1072]]

    (1) Serve under the authority, direction, and control of them 
USD(A&T).
    (2) Serve as a member of the Defense Planning and Resources Board, 
when BMD matters are under consideration, and Chairman of the BMDARC.
    (3) Consult with the Secretaries of the Military Departments, 
Chairman of the Joint Chiefs of Staff, and Under Secretary of Defense 
for Policy when addressing issues under their respective purview, to 
include the strategy and policy implications of defensive capabilities.
    (4) Operate within the DoD Acquisition System, as defined in DoD 
Directive 5000.1 \1\ and DoD Instruction 500.2,\2\ taking direction from 
the USD(A&T); and work directly with appropriate OSD committees and 
offices.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \2\ See footnote 1 to Sec. 388.6(a)(4).
---------------------------------------------------------------------------

    (5) Establish, in consultation with the USD(A&T), mechanisms for 
coordination of BMDPs with other DoD technical efforts; and coordinate 
and exchange information with other DoD officials having collateral or 
related functions.
    (6) Establish procedures for streamlined communication with each 
Military Department and Defense Agency involved in the BMDP.
    (7) Maintain active liaison for the exchange of information and 
advice in the field of assigned responsibility with all the DoD 
Components, other U.S. Government activities, and non-DoD research 
institutions (including private business entities and educational 
institutions).
    (8) Through the USD(A&T), keep the Secretary of Defense, the Deputy 
Secretary of Defense, the DoD Components, and non-DoD U.S. Government 
Agencies informed, as appropriate, on schedules, status, and significant 
new developments, breakthroughs, and technological advances within 
assigned projects.
    (9) Use existing facilities and services of the Department of 
Defense and other Federal Agencies, whenever practicable, to avoid 
duplication and to achieve maximum efficiency and economy.
    (b) The Heads of the DoD Components shall:
    (1) Provide support within their respective fields of 
responsibilities, to the Director, BMDO, as required, to carry out the 
responsibilities and functions assigned to BMDO.
    (2) Provide information, as necessary, to the Director, BMDO, on all 
programs and activities that include, or are related to, BMD research, 
technology, and the BMDP.
    (c) The Secretaries of the Military Departments and Directors of 
Defense Agencies shall:
    (1) Execute BMD element programs and BMD technology development 
efforts as recommended by the Director, BMDO, and approved by the 
Secretary of Defense.
    (2) Provide the personnel (to include a BMD Program Executive 
Officer and Element Program Managers) and the infrastructure necessary 
to support all Service BMD activities.
    (3) Provide program recommendations and advice to the Director, BMDO 
on budgeting, resources, and program execution.
    (4) Provide advice on BMD activities, including readiness for 
advancing through the acquisition process, technical and programmatic 
issues, and general program guidance.
    (5) Submit program documentation and reports required by the 
Director, BMDO, in support of DAE reviews and milestone decisions.



Sec. 388.7  Authorities.

    The Director, BMDO, is hereby delegated authority to:
    (a) Communicate directly and enter into agreements with heads of DoD 
Components, as necessary, in carrying out assigned responsibilities. 
Communications with the Commanders of the Unified Combatant Commands 
shall be communicated through the Chairman of the Joint Chiefs of Staff.
    (b) Recommend to the USD(A&T) revisions or exceptions to Military 
Department and/or Defense Agency regulations, directives, procedures, or 
instructions for, or related to, system acquisition for individual or a 
class of BMD requirements as determined necessary to accomplish the BMD 
objectives.

[[Page 1073]]

    (c) Enter into and administer contracts, directly or through a 
Military Department, as appropriate, for supplies, equipment, and 
services required to accomplish the mission of the BMDO.
    (d) Serve as the head of an Agency and Contracting Activity, and act 
as the Senior Procurement Executive, within the meaning of and subject 
to the limitations of 48 CFR 202.101 and 48 CFR 2.1, for the BMDO.
    (e) Authorize the allocation and/or sub-allocation of funds made 
available to BMDO for assigned research, development, test, and 
acquisition projects.
    (f) Acquire or construct, through a Military Department or other 
Government Agency, such research, development, and test facilities and 
equipment required to carry out assignments that may be approved by the 
Secretary of Defense or Deputy Secretary of Defense as recommended by 
the USD(A&T), in accordance with applicable statutes.
    (g) Negotiate agreements, as necessary, with other U.S. Agencies and 
organizations to ensure proper coordination and execution of the BMDP.
    (h) Negotiate agreements, as necessary, with foreign governments to 
execute allied participation in the BMDP. These agreements shall be 
subject to approval by duly appointed DoD authorities, in accordance 
with DoD Directive 5530.3.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 388.6(a)(4).
---------------------------------------------------------------------------

    (i) Establish, in coordination with appropriate DoD Components, 
special security procedures for sensitive BMDPs.
    (j) Exercise original classification authority over BMDO funded 
technology development and acquisition programs. In general, where 
another DoD Component has been designated for program execution, 
original classification authority will be delegated to that Component as 
part of a program management agreement with BMDO. All original 
classification decisions must be made in coordination with the BMDO, 
Military Departments, and other appropriate DoD organizations.
    (k) Exercise foreign disclosure authority over BMDO funded 
technology development and acquisition programs. In general, where 
another DoD Component has been designated for program execution, foreign 
disclosure authority will be delegated to that Component as part of a 
program management agreement with BMDO. All foreign disclosure decisions 
must be made in accordance with National Disclosure Policy and 
applicable DoD procedures, and be coordinated with the BMDO, Military 
Departments, and other appropriate DoD organizations.
    (l) Carry out the functions and exercise the responsibilities of the 
Theater Missile Defense Initiative Office, as established by section 231 
of the National Defense Authorization Act for Fiscal Year 1993.
    (m) Exercise the administrative authorities contained in appendix A 
to this part.



Sec. 388.8  Administration.

    (a) The Director, BMDO, shall be appointed by the Secretary of 
Defense, upon recommendation from the USD(A&T).
    (b) The Military Departments shall assign personnel to BMDO, in 
accordance with approved authorizations and procedures for joint duty 
assignment and the Defense Acquisition Workforce Improvement Act.
    (c) Administrative support required for BMDO shall be provided by 
the other DoD Components, as appropriate.
    (d) The Director, BMDO, shall consult on all key military and 
civilian personnel assignments within the BMD management network.

            Appendix A to Part 388--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and in 
accordance with DoD policies, Directives, and Instructions, the 
Director, BMDO, or, in the absence of the Director, the person acting 
for the Director, is hereby delegated authority, in the administration 
and operation of the BMDO, to:
    1. Perform the following functions in accordance with the provisions 
of 5 U.S.C. 7532; Executive Order 10450, 3 CFR, 1949-1953 Comp., p. 936 
and 32 CFR part 154.
    a. Designate and position in the BMDO as a ``sensitive'' position.
    b. Authorize, in case of an emergency, the appointment of a person 
to a sensitive position in the BMDO, for a limited period of time, for 
whom a full field investigation or other appropriate investigation, 
including the National Agency Check, has not been completed.

[[Page 1074]]

    c. Authorize the suspension, but not the termination, of the 
services of a BMDO employee in the interest of national security.
    2. Authorize and approve:
    a. Travel for BMDO civilian employees, in accordance with Joint 
Travel Regulations,\1\ Volume II.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the Superintendent of 
Documents, Government Printing Office, Washington, DC 20402.
---------------------------------------------------------------------------

    b. Temporary duty travel only for military personnel assigned or 
detailed to BMDO, in accordance with Joint Travel Regulations, Volume I.
    c. Invitational travel to persons serving without compensation whose 
consultative, advisory, or other specialized technical services are 
required in a capacity directly related to, or in connection with, BMDO 
activities.
    3. Approve the expenditure of funds available for travel by military 
personnel assigned or detailed to BMDO for expenses incident to 
attendance at meetings of technical, scientific, professional, or other 
similar organizations in such instances where the approval of the 
Secretary of Defense or designee is required by law (37 U.S.C. 412).
    4. Develop, establish, and maintain an active and continuing Records 
Management Program under DoD Directive 5015.2; \2\ DoD Directive 5400.7; 
\3\ and DoD Directive 5400.11.\4\
---------------------------------------------------------------------------

    \2\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
    \3\ See footnote 2 to section 4. of this appendix.
    \4\ See footnote 2 to section 4. of this appendix.
---------------------------------------------------------------------------

    5. Establish and use imprest funds for making small purchases of 
material and services, other than personal, for the BMDO when it is 
determined more advantageous and consistent with the best interests of 
the Government, in accordance with DoD Directive 7360.10 \5\ and Volume 
5, DoD 7000.14-R,\6\ and the Joint Regulation of the General Services 
Administration-Treasury.\7\
---------------------------------------------------------------------------

    \5\ See footnote 2 to section 4. of this appendix.
    \6\ See footnote 2 to section 4. of this appendix.
    \7\ See footnote 1 to section 2.a. of this appendix.
---------------------------------------------------------------------------

    6. Authorize and approve overtime work for civilian personnel in 
BMDO, in accordance with provisions of the Federal Personnel Manual 
Supplement \8\ 990-1, section 550.11.
---------------------------------------------------------------------------

    \8\ See footnote 1 to section 2.a. of this appendix.
---------------------------------------------------------------------------

    7. Establish and maintain appropriate property accounts for BMDO and 
appoint boards of survey, approve reports of survey, relieve personal 
liability, and drop accountability for BMDO property contained in the 
authorized property accounts that have been lost, damaged, stolen, 
destroyed, or otherwise rendered unserviceable, in accordance with 
applicable laws and regulations.
    8. Establish and maintain for the functions assigned an appropriate 
publications system for the promulgation of regulations, Instructions, 
and reference documents, and changes thereto, pursuant to the policies 
and procedures prescribed in DoD 5025.1-M.\9\
---------------------------------------------------------------------------

    \9\ See footnote 2 to section 4. of this appendix.
---------------------------------------------------------------------------

    9. Issue the necessary security regulations for protection of 
property and places under the jurisdiction of the BMDO, under DoD 
Directive 5200.8.\10\
---------------------------------------------------------------------------

    \10\ See footnote 2 to section 4. of this appendix.
---------------------------------------------------------------------------

    10. Exercise original TOP SECRET classification authority.
    11. Establish security classification guidance and review policy.
    12. Enter into inter-service support agreements with the Military 
Departments, other DoD Components, or other Government Agencies, as 
required, for the effective performance of responsibilities and 
functions assigned to the BMDO.
    13. Establish advisory committees pursuant to the provisions of the 
Federal Advisory Committee Act of 1972 (Pub. L. 92-463) and DoD 
Directive 5105.18.\11\
---------------------------------------------------------------------------

    \11\ See footnote 2 to section 4. of this appendix.
---------------------------------------------------------------------------

    14. Authorize the publication of advertisements, notices, or 
proposals in newspapers, magazines, or other public periodicals as 
required for the effective administration and operation of BMDO (44 
U.S.C. 3702).
    15. Request specific Military Departments and Defense Agencies to 
serve as contracting activities for the BMDO, as necessary.



PART 390_ARMED FORCES RADIOBIOLOGY RESEARCH INSTITUTE--Table of Contents




Sec.
390.1 Purpose.
390.2 Applicability.
390.3 Policy.
390.4 Responsibilities.
390.5 Organization.
390.6 Functions.
390.7 Authority.
390.8 Effective date and implementation.

    Authority: 10 U.S.C. 133.

    Source: 53 FR 16254, May 6, 1988, unless otherwise noted.

[[Page 1075]]



Sec. 390.1  Purpose.

    This part is issued to update and clarify the responsibilities and 
functions of the Armed Forces Radiobiology Research Institute (AFRRI). 
It sets forth the organizational relationships and establishes the 
management and administrative procedures for AFRRI, in accordance with 
32 CFR part 381 and provides for the establishment of a Board of 
Governors.



Sec. 390.2  Applicability.

    This part applies to the Office of the Secretary of Defense (OSD), 
the Military Departments, the Organization of the Joint Chiefs of Staff 
(NJCS), and the Defense Agencies (hereafter referred to collectively as 
``DoD Components''). The term ``Military Services,'' as used herein, 
refers to the Army, Navy, Air Force, and Marine Corps.



Sec. 390.3  Policy.

    It is DoD Policy that:
    (a) AFRRI is designated a subordinate command of the Defense Nuclear 
Agency (DNA) established under the authority vested in the Secretary of 
Defense.
    (b) AFRRI shall serve as the principal ionizing radiation 
radiobiology research laboratory for the Department of Defense and shall 
support defense research requirements identified by the DoD Components. 
AFRRI may provide services and perform cooperative research with other 
Federal and civilian agencies and institutions with the approval of the 
Director, DNA.
    (c) The mission of AFRRI shall be to conduct research in the field 
of radiobiology and related matters essential to the operational and 
medical support of the Department of Defense and the Military Services.
    (d) For purposes of cognizance by the Under Secretary of Defense for 
Acquisition (USD(A)), the AFRRI program shall be considered an integral 
part of the medical and life sciences research, development, test, and 
evaluation program.



Sec. 390.4  Responsibilities.

    (a) The Director, Defense Nuclear Agency, shall:
    (1) Manage the AFRRI, as provided by 32 CFR part 381.
    (2) Provide adequate support for the operation and maintenance of 
AFRRI within the limits of resources available to the DNA for such 
purposes.
    (3) Chair the AFRRI Board of Governors, which shall consist of the 
Surgeons General of the Army, Navy, and Air Force; the Deputy Chiefs of 
Staff for Operations of the Army, Navy, and Air Force, or their 
designated representatives; and representatives of the (USD(A)) and the 
Assistant Secretary of Defense for Health Affairs (ASD(HA)). The Board 
of Governors shall:
    (i) Meet at least annually and at the call of the Chair.
    (ii) Invite advisors to these meetings.
    (iii) Make periodic visits to AFRRI.
    (iv) Advise the Director, DNA, and the Director, AFRRI, on AFRRI's 
performance by doing the following:
    (A) Review the AFRRI research program and scientific findings.
    (B) Provide advice on the long term direction of AFRRI's research 
program.
    (C) Facilitate the communication of Service requirements and the 
dissemination of AFRRI research findings.
    (D) Review Service nominations for Director, AFRRI, and provide a 
prioritized list of nominees to the Director, DNA.
    (b) The Director, Armed Forces Radiobiology Research Institute 
(AFRRI), shall:
    (1) Execute the approved day-to-day research program.
    (2) Prepare the AFRRI long-range research program; annual planning, 
programming, and budgeting system submission; and facilities master 
plans for approval by the Director, DNA.
    (3) Plan, program, and budget for funds to include in the DNA 
program. This does not prevent AFRRI's participation in reimbursable 
activities, subject to the approval by the Director, DNA.



Sec. 390.5  Organization.

    AFRRI shall consist of a Director, a Scientific Director, and a 
supporting staff:
    (a) The Director, AFRRI, shall be a military officer (in grade O-6) 
who holds an earned doctoral degree in one

[[Page 1076]]

of the life sciences. The candidates for Director shall be nominated by 
the Surgeons General of the Army, Navy, and Air Force. Each Service 
shall nominate one individual with the proper background. Candidates 
shall be nominated on the basis of professional qualifications and 
demonstrated management ability. The Board of Governors shall review the 
Service nominees and provide a prioritized list of candidates to the 
Director, DNA, who shall select and appoint the Director, AFRRI. This 
appointment shall be for a 4-year period.
    (b) The Scientific Director shall be a civilian with professional 
qualifications acceptable to the Board of Governors and the Director, 
AFRRI.
    (c) The professional, technical, and supporting staff shall consist 
of military and civilian personnel authorized by a Joint Table of 
Distribution (JTD), developed by the Director, AFRRI, with approval of 
Director, DNA, and approved by the Joint Chiefs of Staff (JCS). Insofar 
as possible, the military members of the staff shall be provided equally 
by the Military Departments.
    (d) The Military Departments shall assign military personnel to 
AFRRI in accordance with approved authorizations. Procedures for such 
assignments shall be as agreed between the Director, DNA, and the 
individual Military Departments.
    (e) The pay, allowances (including subsistence), and permanent 
change-of-station costs of military personnel assigned to AFRRI shall be 
budgeted for and paid by the Military Department concerned. 
Additionally, these and other costs that are caused by or benefiting 
AFRRI, regardless of financing, shall be allocated to AFRRI in 
accordance with DoD Instruction 7220.24 \1\ to identify the total cost 
associated with operating AFRRI and the share of that total cost 
allocatable to each of AFRRI's research projects.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the U.S. Naval 
Publication and Forms Center, Attention: Codes 1052, Philadelphia, PA 
19120.
---------------------------------------------------------------------------



Sec. 390.6  Functions.

    Under established DoD policies, AFRRI shall:
    (a) Operate research facilities for the study of radiobiology and 
ionizing radiation bioeffects, and disseminate the results.
    (1) The scope of this research shall reflect requirements identified 
by DoD Components in support of military operational planning and 
employment (current and future), and shall give special emphasis to 
individual and organizational performances under nuclear combat 
conditions in realistc operational scenarios.
    (2) The AFRRI program shall consider the present and projected 
threats, Service operational concepts and weapons, and defense systems 
developments.
    (b) Provide analysis, study, and consultation on the impact of the 
biological effects of ionizing radiation on the organizational 
efficiency of the Military Services and their members.
    (c) Conduct cooperative research with the Military Medical 
Departments in those aspects of military operational and medical support 
considerations related to nuclear weapons effects and the radio 
biological hazards of space operations.
    (d) Conduct advanced training in the field of radiobiology and the 
biological effects of nuclear weapons to meet the internal requirements 
of AFRRI, the Military Services, and other DoD Components and 
organizations.
    (e) Perform such other functions as may be assigned.



Sec. 390.7  Authority.

    32 CFR part 381 applies to the Director, DNA, for exercising head-
quarters management of AFRRI and fulfilling the functional 
responsibilities implicit in this part.



Sec. 390.8  Effective date and implementation.

    This part is effective November 25, 1987. Forward two copies of 
implementing documents to the Under Secretary of Defense of Acquisition 
within 120 days.



PART 392_DIRECTOR OF SMALL AND DISADVANTAGED BUSINESS UTILIZATION
--Table of Contents




Sec.
392.1 Purpose.

[[Page 1077]]

392.2 Definition
392.3 Responsibilities.
392.4 Functions.
392.5 Relationships.
392.6 Authorities.

    Authority: 10 U.S.C. 133

    Source: 54 FR 13381, Apr. 3, 1989, unless otherwise noted.



Sec. 392.1  Purpose.

    This part:
    (a) Implements 15 U.S.C. 644(k) that establishes the position of 
Director of Small and Disadvantaged Business Utilization (Director, 
SADBU) under the direction, authority, and control of the Under 
Secretary of Defense (Acquisition) (USD(A)).
    (b) Assigns responsibilities, functions, relationships, and 
authorities, as prescribed herein, to the Director, SADBU, pursuant to 
the authority vested in the Secretary of Defense under section 10 U.S.C. 
113.



Sec. 392.2  Definition.

    DoD Components. The Office of the Secretary of Defense (OSD), the 
Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff, 
the Unified and Specified Commands, the Defense Agencies, and the DoD 
Field Activities.



Sec. 392.3  Responsibilities.

    The Director of Small and Disadvantaged Business Utilization shall 
serve as the principal staff assistant and advisor to the USD(A) for 
ensuring that a fair share of goods and services procured by the 
Department of Defense is acquired from small, small disadvantaged, and 
women-owned small businesses. In this capacity, the Director, SADBU, 
shall:
    (a) Implement and execute the functions and duties assigned by 15 
U.S.C. 636 and 644, as they relate to the Department of Defense.
    (b) Conduct analyses, develop policies, provide advice, make 
recommendations, and issue guidance on DoD plans, programs, and 
requirements.
    (c) Develop plans, programs, procedures, goals, and objectives, and 
initiate actions and taskings to ensure adherence to DoD policies.
    (d) Develop systems and standards for the administration of approved 
policies, plans, and programs.
    (e) Conduct reviews (including compliance reviews of DoD Components 
and major prime contractors) and evaluate programs to ensure adherence 
to approved policies and standards.
    (f) Participate in the Planning, Programming, and Budgeting System 
(PPBS) and the Defense Acquisition System, and in development of the 
Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition 
Regulation Supplement (DFARS).
    (g) Keep appropriate organizations and officials informed of 
significant trends or initiatives.
    (h) Promote coordination, cooperation, and mutual understanding 
within the Department of Defense and between the Department of Defense, 
congressional committees, other Government Agencies, and the public.
    (i) Serve on boards, committees, and other groups and represent the 
Secretary of Defense and USD(A) outside the Department of Defense.
    (j) Perform other duties as the Secretary of Defense and the USD(A) 
may prescribe.



Sec. 392.4  Functions.

    The Director, SADBU, shall carry out the responsibilities in Sec. 
392.3 for the following functional areas:
    (a) Prime contracts, subcontracts, and research and development 
contracts for small, small disadvantaged, and women-owned small 
businesses.
    (b) Labor Surplus Area Program.
    (c) Historically Black Colleges and Universities and Minority 
Institutions.
    (d) Small and Disadvantaged Business Subcontracting Program.
    (e) Small Business Research and Development Program, to include the 
Small Business Innovation Research Program.
    (f) Blind and Other Severely Handicapped Program.
    (g) Procurement Technical Assistance Program.
    (h) Small Business Set Aside Program.
    (i) Small Disadvantaged Business Development Program.
    (j) DoD procurement outreach publications.

[[Page 1078]]

    (k) Programs in support of Area Small Business Councils; Federal 
procurement conferences sponsored by members of Congress in their 
constituencies; economic development entities of States, counties, and 
municipalities; and industry trade associations promoting the growth of 
small businesses, small disadvantaged businesses, and women-owned small 
businesses.



Sec. 392.5  Relationships.

    (a) In the performance of the above functions, the Director, SADBU, 
shall:
    (1) Coordinate and exchange information with officials of other DoD 
Components having collateral or related functions.
    (2) Use existing systems, facilities, and services of the Department 
of Defense and other Federal Agencies, whenever practicable, to achieve 
maximum efficiency and economy.
    (3) Operate a Central Procurement Information Office for the 
Department of Defense.
    (b) Other OSD officials and the Heads of DoD Components shall 
coordinate with the Director, SADBU, on all matters related to the 
functions in Sec. 392.4.



Sec. 392.6  Authorities.

    The Director, SADBU, is hereby delegated authority to:
    (a) Issue DoD Instructions, DoD publications, and one-time 
directive-type memoranda, consistent with DoD 5025.1-M, that implement 
policies approved by the Secretary of Defense in the functions assigned 
to the Director, SADBU. Instructions to the Military Departments shall 
be issued through the Secretaries of those Departments, or their 
designees. Instructions to Unified and Specified Commands shall be 
issued through the Chairman, JCS (CJCS).
    (b) As authorized by Section 15 U.S.C. 644(k)(4), exercise 
supervisory authority over DoD personnel to the extent that their 
functions and duties relate to the functions and duties assigned to the 
Director, SADBU, by 15 U.S.C. Sections 637 and 644.
    (c) Assign small business technical advisers to the DoD Components 
in accordance with 15 U.S.C. Section 644(k)(6).
    (d) Obtain reports, information, advice, and assistance, consistent 
with DoD Directive 7750.5, as necessary, in carrying out assigned 
functions.
    (e) Communicate directly with the Heads of the DoD Components. 
Communication to Commanders of the Unified and Specified Commands shall 
be coordinated with the CJCS.
    (f) Establish arrangements for DoD participation in non-Defense 
governmental programs for which the Director, SADBU, is assigned primary 
staff cognizance.
    (g) Communicate with other Government Agencies, representatives of 
the legislative branch, and members of the public, as appropriate, in 
carrying out assigned functions.



PART 395_DEFENSE LEGAL SERVICES AGENCY--Table of Contents




Sec.
395.1 Purpose.
395.2 Definition.
395.3 Organization and management.
395.4 Functions and responsibilities.
395.5 Relationships.
395.6 Authorities.

Appendix to Part 395--Delegations of Authority

    Authority: 10 U.S.C. 133.

    Source: 55 FR 2808, Jan. 29, 1990, unless otherwise noted.



Sec. 395.1  Purpose.

    This part, pursuant to the authority vested in the Secretary of 
Defense under title 10, United States Code, updates the Defense Legal 
Services Agency (DLSA) charter with functions, responsibilities, 
relationships, and authorities as outlined herein.



Sec. 395.2  Definition.

    DoD Components. The Office of the Secretary of Defense (OSD), the 
Military Departments, the Joint Chiefs of Staff (JCS), the Joint Staff, 
the Unified and Specified Commands, the Inspector General of the 
Department of Defense (IG, DoD), the Defense Agencies, and the DoD Field 
Activities.



Sec. 395.3  Organization and management.

    (a) The DLSA is established as a separate agency of the Department 
of Defense under the direction, authority,

[[Page 1079]]

and control of the General Counsel of the Department of Defense (GC, 
DoD). It shall consist of a Director and such subordinate organizational 
elements as are established by the Director within resources assigned by 
the Secretary of Defense. It shall include the legal staffs assigned to 
the Defense Agencies and DoD Field Activities.
    (b) Budgeting, management of ceiling spaces, personnel services, and 
other administrative support for DLSA personnel shall be the 
responsibility of the Defense Agency or Field Activity to which those 
personnel are assigned.
    (c) The GC, DoD, shall serve as the Director, DLSA.



Sec. 395.4  Functions and responsibilities.

    The Director, Defense Legal Services Agency (DLSA), shall:
    (a) Organize, direct, and manage the DLSA and all resources assigned 
to the DLSA.
    (b) Provide legal advice and services for the Defense Agencies, DoD 
Field Activities, and other assigned organizations.
    (c) Provide technical support and assistance for development of the 
DoD Legislative Program.
    (d) Coordinate DoD positions on legislation and Presidential 
Executive orders.
    (e) Provide a centralized legislative document reference and 
distribution point for the Department of Defense, and maintain the 
Department's historical legislative files.
    (f) Develop DoD policy for standards of conduct and administer the 
Standards of Conduct Program for the OSD and other assigned 
organizations.
    (g) Administer the Defense Industrial Security Clearance Review 
Program.
    (h) Perform such other duties as the Secretary or Deputy Secretary 
of Defense may prescribe.



Sec. 395.5  Relationships.

    (a) In performance of assigned responsibilities and functions, the 
Director, DLSA, shall:
    (1) Coordinate actions and exchange information with other DoD 
organizations having collateral or related functions.
    (2) Promote coordination, cooperation, and mutual understanding of 
matters pertaining to assigned functions within the Department of 
Defense and between the Department of Defense, other Government 
Agencies, and the public.
    (3) Serve on boards, committees, and other groups concerned with 
matters pertaining to assigned functions, and represent the Secretary of 
Defense on assigned functions outside the Department of Defense.
    (4) Use existing facilities and services, whenever practicable, to 
achieve maximum efficiency and economy.
    (5) Provide professional supervision for DLSA attorneys serving in 
Defense Agencies, DoD Field Activities, and other organizations to which 
such attorneys are assigned. This includes, in consultation with the DoD 
Component head concerned, evaluation of their performance and/or other 
action that may be necessary based on professional performance.
    (b) All DoD Components shall coordinate with the Director, DLSA, on 
matters related to the functions in Sec. 395.4.



Sec. 395.6  Authorities.

    The Director, DLSA, is delegated authority to:
    (a) Obtain reports, information, advice, and assistance from other 
DoD Components, consistent with DoD Directive 7750.5 \1\ to carry out 
assigned functions and responsibilities, as necessary.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (b) Communicate directly with the heads of the DoD Components. 
Communications to the Commanders of Unified and Specified Commands shall 
be coordinated through the Chairman, Joint Chiefs of Staff (CJCS).
    (c) Communicate with other Government Agencies, representatives of 
the legislative branch, and members of the public, as appropriate, in 
carrying out assigned functions.

             Appendix to Part 395--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to his direction, authority, and control, and in accordance with 
DoD policies, Directives, and

[[Page 1080]]

Instructions, the Director, DLSA, or, in the absence of the Director, 
the person acting for the Director is hereby delegated authority, as 
required in the administration and operation of DLSA, to:
    1. In accordance with 5 U.S.C. 7532, Executive Order 10450, as 
amended, and DoD Directive 5200.2: \2\
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec. 395.6(a).
---------------------------------------------------------------------------

    a. Designate positions as ``sensitive'';
    b. Authorize, in case of an emergency, the appointment to a 
sensitive position, for a limited period of time, of a person for whom a 
full field investigation or other appropriate investigation, including 
the National Agency Check, has not been completed; and
    c. Authorize the suspension, but not terminate the service, of an 
employee in the interest of national security.
    2. Authorize and approve overtime work for civilian officers and 
employees in accordance with subchapter V, chapter 55, title 5, U.S.C., 
and applicable Civil Service Regulations.
    3. Develop, establish, and maintain an active and continuing Records 
Management Program, pursuant to 44 U.S.C. 3102.
    4. Authorize the publication of advertisements, notices, or 
proposals in newspapers, magazines, or other public periodicals, 
consistent with 44 U.S.C. 3702.
    5. Comply with the policies and procedures prescribed in DoD 5025.1-
M.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec. 395.6(a).
---------------------------------------------------------------------------



PART 398_DEFENSE LOGISTICS AGENCY (DLA)--Table of Contents




Sec.
398.1 Purpose.
398.2 Mission.
398.3 Organization and management.
398.4 Responsibilities and functions.
398.5 Authority.
398.6 Relationships.
398.7 Administration.

Appendix A to Part 398--Assigned DoD Programs and/or Systems
Appendix B to Part 398--Delegations of Authority

    Authority: 10 U.S.C. 191-193.

    Source: 54 FR 2101, Jan. 19, 1989, unless otherwise noted. 
Redesignated at 58 FR 39360, July 22, 1993.



Sec. 398.1  Purpose.

    Pursuant to authority vested in the Secretary of Defense under title 
10, this part revises 32 CFR part 398 to update the responsibilities, 
functions, relationships, and authorities of the Defense Logistics 
Agency (DLA).

[54 FR 2101, Jan. 19, 1989. Redesignated and amended at 58 FR 39360, 
July 22, 1993]



Sec. 398.2  Mission.

    The DLA shall function as an integral element of the military 
logistics system of the Department of Defense to provide effective and 
efficient world-wide logistics support to the Military Departments and 
the Unified and Specified Commands under conditions of peace and war, as 
well as to other DoD Components, Federal Agencies, foreign governments, 
or international organizations, as assigned. This support shall include:
    (a) The provision of material commodities and items of supply that 
have been determined, through the application of approved criteria, to 
be appropriate for integrated management by a single agency on behalf of 
all DoD Components, of that has been otherwise specifically assigned by 
appropriate authority.
    (b) The performance of logistics services directly associated with 
furnishing material commodities and items of supply (hereafter referred 
to as ``Items'').
    (c) The administration of Department-wide supply and logistics 
management systems, programs, and activities, as assigned, including the 
provision of technical assistance, support services, and information.



Sec. 398.3  Organization and management.

    DLA is established as a Combat Support Agency of the Department of 
Defense under the overall supervision of the Under Secretary of Defense 
for Acquisition (USD(A)) and, with the exception of those 
responsibilities, functions and relationships assigned to the Chairman, 
Joint Chiefs of Staff (CJCS), by this part, is under the direction, 
authority, and control of the USD(A) pursuant to 32 CFR part 382. It 
shall consist of a Director and such subordinate organizational elements 
as are established by the Director or specifically assigned to the 
Agency by the Secretary of Defense.

[[Page 1081]]



Sec. 398.4  Responsibilities and functions.

    (a) The Director, Defense Logistics Agency (DLA) shall:
    (1) Organize, direct, and manage the DLA and all assigned resources; 
procure assigned items; and administer, supervise, and control all 
programs, services, and items assigned to DLA.
    (2) Provide staff advice and assistance on supply and logistics 
matters to the Office of the Secretary of Defense (OSD), the Military 
Departments, other DoD Components, and other designated organizations, 
as appropriate.
    (3) Maintain a wholesale distribution system for assigned items and 
accomplish all material management functions required to ensure 
responsive support to the associated supply and logistics requirements 
determination, supply control, procurement, quality and reliability 
assurance, industrial responsiveness and mobilization planning, receipt, 
storage, inventory accountability and distribution control, 
transportation, repair, maintenance and manufacture, shelf-life control, 
provisioning, technical logistic data and information, engineering 
support, value engineering, standardization, reutilization and 
marketing, and other related supply and logistics management functions, 
as appropriate.
    (4) Provide contract administration services in support of the 
Military Departments and other DoD Components, the National Aeronautics 
and Space Administration, and other designated Federal and State 
Agencies, foreign governments, and international organizations.
    (5) Operate centralized management information and technical report 
data banks in DLA; oversee the management of contractor-operated DoD 
Information Analysis Centers in selected fields of science and 
technology; and provide scientific and technical information to DoD 
Components, individuals, businesses, educational institutions, 
government laboratories, government contractors, and others consistent 
with policy guidance provided by the Under Secretary of Defense for 
Research and Engineering.
    (6) Perform systems analysis and design, procedural development, and 
maintenance for supply and service systems and other logistics matters 
assigned by the Secretary of Defense.
    (7) Administer, manage, and operate the DoD-wide programs and 
systems listed in enclosure 1, and recommend periodic revisions to this 
list, as appropriate.
    (8) Develop, monitor, and maintain effective supply relationships 
with the General Services Administration (GSA) in order to ensure the 
timely availability of GSA items required by DoD Components.
    (9) Support the Commanders of Unified Commands, and through overseas 
elements of DLA, provide coordinated and responsive logistics support; 
develop policies; plans, and procedures; develop resources requirements; 
ensure security compliance by DLA personnel; and provide for the 
management and direction of DLA overseas activities.
    (10) Perform such other functions as may be assigned by the 
Secretary of Defense or USD(A).
    (b) The Under Secretary of Defense (Acquisition) (USD(A)) shall:
    (1) Provide guidance and direction to DLA on operational policies 
and procedures related to the development and operation of defense 
logistics programs and systems.
    (2) Consult with the CJCS on such areas as critical logistics war 
fighting deficiencies and military requirements for defense acquisition 
programs.
    (3) Obtain recommendations from the CJCS relative to DLA's 
contribution to war fighting readiness and sustainment of the Unified 
Commands.
    (c) The Chairman, Joint Chiefs of Staff (CJCS), under the authority 
and direction of the Secretary of Defense, shall:
    (1) Provide advice and recommendations to the USD(A) regarding the 
mission, functions, and responsibilities of DLA.
    (2) Provide advice on matters pertaining to the policies, planning, 
design, maintenance, testing, and evaluation of logistics systems.
    (3) Obtain advice and recommendations from the USD(A) and from the 
Director, DLA, on matters within the areas of responsibility assigned to 
DLA.

[[Page 1082]]

    (4) Review DLA planning and programming documents, assess their 
responsiveness to operational requirements, and provide direction to the 
Director, DLA.
    (5) Periodically submit (not less than every 2 years) to the 
Secretary of Defense a report with respect to DLA's responsiveness and 
readiness to support operating forces in the event of war or threat to 
national security and other recommendations that the Chairman deems 
appropriate.
    (6) Provide for the participation of DLA in joint training exercises 
and assess performance.
    (7) Provide tasking related to defense readiness to the Director, 
DLA.
    (8) Develop and submit JCS logistics requirements and priorities to 
the Director, DLA.
    (d) The Commander of a Unified Command is authorized to, and as 
appropriate shall:
    (1) Following approval from the Director, DLA, or the CJCS, and 
within the Commander's geographic area, direct DLA elements to ensure 
effective operations.
    (2) In a major emergency, assume temporary operational control of 
all DLA elements in the Commander's area of responsibility, with 
notification immediately following to the CJCS, the appropriate 
operational commander, and the Director, DLA.
    (e) Commanders of Component Commands shall:
    (1) Exercise such responsibilities and authorities pertinent to DLA 
elements as may be assigned or delegated to them by the Commander of 
their Unified Command.
    (2) Provide for the physical security and administrative and 
logistic support of DLA elements as agreed to by DLA and Component 
Commands concerned under inter-Service support agreements.
    (f) Within their areas of responsibility, the CJCS, the CINCs, the 
Secretaries of the Military Departments, and the heads of other DoD 
Components shall provide to the Director, DLA, support and logistical 
planning information, including information on funding shortfalls that 
impact the responsibilities and functions assigned to DLA.



Sec. 398.5  Authority.

    The Director, DLA, is specifically delegated authority to:
    (a) Meet the needs of the Military Departments and other authorized 
customers by conducting, directing, supervising, or controlling all 
procurement activities regarding property, supplies, and services 
assigned to DLA for procurement in accordance with applicable laws, DoD 
Regulations, the FAR and the DFARS. To the extent that any law or 
Executive order specifically limits the exercise of such authority to 
persons at the Secretarial level, such authority shall be exercised by 
the USD(A).
    (b) Prescribe procedures, standards, and practices for the 
Department of Defense governing the execution of assigned 
responsibilities and functions.
    (c) Obtain such reports, information, advice, and assistance from 
other DoD Components consistent with the policies and criteria of DoD 
Directive 7750.5\1\ as may be necessary for the performance of assigned 
functions and responsibilities.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, at cost, from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (d) Establish new DLA facilities or recommend to the USD(A) the 
reassignment to DLA or use of existing facilities of the Military 
Departments by DLA, as deemed necessary for improved effectiveness and 
economy.
    (e) Provide membership on the Defense Acquisition Regulatory Council 
(DAR Council), participate with the Secretaries of the Military 
Departments and Federal Agencies in developing and publishing the FAR 
and participate with the Secretaries of the Military Departments in 
developing and publishing the DFARS.
    (f) Exercise the administrative authorities contained in the 
appendix B to this part.

[54 FR 2101, Jan. 19, 1989. Redesignated and amended at 58 FR 39360, 
July 22, 1993]



Sec. 398.6  Relationships.

    (a) In performing assigned functions, the Director, DLA, shall:
    (1) Have free and direct access to, and communicate with, all 
elements of the

[[Page 1083]]

Department of Defense and other Executive Departments and Agencies, as 
necessary.
    (2) Maintain appropriate liaison with other DoD Components, Agencies 
of the Executive branch, foreign governments, and international 
organizations for the exchange of information on programs and activities 
in the field of assigned responsibilities.
    (3) Maintain close working relationships with weapon systems 
managers of the Military Departments to ensure integration of effort and 
exchange of technical programs and reference data.
    (4) Use established facilities and services of the Department of 
Defense and other Federal Agencies, whenever practicable, to avoid 
duplication and to achieve an appropriate balance among modernization, 
readiness, sustain ability, efficiency, and economy.



Sec. 398.7  Administration.

    (a) The Director shall be an active duty, commissioned officer of 
General or Flag rank, appointed by the Secretary of Defense based on the 
recommendation of the CJCS as approved by the USD(A).
    (b) The Deputy Director shall be an active duty, commissioned 
officer of General or Flag rank, approved by the USD(A) based on the 
recommendation of the CJCS and Director, DLA.
    (c) DLA shall be authorized such personnel, facilities, funds, and 
other administrative support as the Secretary of Defense deems 
necessary.
    (d) The Military Departments shall assign military personnel to DLA 
in accordance with approved authorizations and procedures for assignment 
to joint duty.
    (e) Programming, budgeting, funding, auditing, accounting, pricing, 
and reporting activities of DLA shall be in accordance with established 
DoD policy and procedures. DLA shall use appropriated funds to finance 
the operating costs of the Agency; a stock fund to finance all 
inventories procured for resale; a transaction fund to finance the 
purchase of needed stockpile materials; and, when appropriate, an 
industrial fund for financing industrial-commercial type operations.

      Appendix A to Part 398--Assigned DoD Programs and/or Systems

    The following DoD programs and/or systems or aspects of these 
programs and/or systems are assigned to DLA to administer, manage, and/
or operate:

 DoD Coordinated Procurement
 Federal Catalog System
 DoD Industrial Plant Equipment
 Operating Military Parts Control Advisory Groups for 
Standardization of Parts at the System Equipment Design Stage
 Defense Automatic Addressing System
 Defense Precious Metals Recovery
 Assigned Aspects of DoD Food Service Management
 Defense Procurement Management Review
 Defense Energy Information System
 Centralized Referral System
 Overseas Employment Referral
 Automation Resources Management System
 Depot Maintenance and Maintenance Support Cost 
Accounting and Production Reporting and Information System
 DoD Shelf-life Item Management
 DoD Scientific and Technical Information
 DoD Information Analysis Center
 DoD Hazardous Materials Information System
 Hazardous Material Technology Development
 DoD-wide Interchangeability and/or Substitutability
 Dod Personal Property Utilization and Disposal
 DoD Industrial Resources Management
 Integrated Material Manager for Bulk Petroleum
 DoD Specification Standardization
 National Defense Stockpile Program

            Appendix B to Part 398--Delegations of Authority

    Pursuant to the authority vested in the Secretary of Defense, and 
subject to the direction, authority, and control of the Secretary of 
Defense, and in accordance with DoD Policies, Directives, and 
Instructions, the Director, DLA, or in the absence of the Director, the 
person acting for the Director, is hereby delegated authority as 
required in the administration and operation of DLA to:
    1. Exercise the powers vested in the Secretary of Defense by 5 
U.S.C. 301, 302(b), and 3101 pertaining to the employment, direction and 
general administration of DLA civilian personnel.
    2. Fix rates of pay for wage-rate employees exempted from the 
Classification Act of 1949 by 5 U.S.C. 5102 on the basis of rates 
established under the Combined Federal Wage System. In fixing such 
rates, the Director, DLA, shall follow the wage schedule established by 
the DoD Wage Fixing Authority.

[[Page 1084]]

    3. Establish advisory committees and employ part-time advisors as 
approved by the Secretary of Defense for the Performance of DLA 
functions pursuant to the provisions of 10 U.S.C. 173, 5 U.S.C. 3109(b), 
and the agreement between the Department of Defense and the Office of 
Personnel Management (OPM) on employment of experts and consultants, 
dated June 21, 1977.
    4. Administer oaths of office incident to entrance into the 
Executive Branch of the Federal Government or any other oath required by 
law in connection with employment therein, in accordance with the 
provisions of 5 U.S.C. 2903, and designate in writing, as may be 
necessary, officers and employees of DLA to perform this function.
    5. Establish a DLA Incentive Awards Board and pay cash awards to, 
and incur necessary expenses for the honorary recognition of, civilian 
employees of the Government whose suggestions, inventions, superior 
accomplishments, or other personal efforts, including special acts or 
services, benefit or affect DLA or its subordinate activities, in 
accordance with the provisions of 5 U.S.C. 4503 and OPM regulations.
    6. In accordance with the provisions of 5 U.S.C. 7532; Executive 
Orders 10450, 12333, and 12356; and DoD Directive 5200.2, ``DoD 
Personnel Security Program,'' December 20, 1979:
    a. Designate the security sensitivity of positions within DLA.
    b. Authorize, in case of an emergency, the appointment of a person 
to a sensitive position in DLA for a limited period of time for whom a 
full field investigation or other appropriate investigation, including 
the National Agency Check, has not been completed.
    c. Authorize the suspension, but not terminate the services of a DLA 
employee in the interest of national security.
    d. Initiate investigations, issue personnel security clearances and, 
if necessary, in the interest of national security, suspend, revoke, or 
deny a security clearance for personnel assigned or detailed to, or 
employed by DLA. Any action to deny or revoke a security clearance shall 
be taken in accordance with procedures prescribed in DoD 5200.2-R, ``DoD 
Personnel Security Program,'' January 1987.
    7. Act as agent for the collection and payment of employment taxes 
imposed by chapter 21 of the Internal Revenue Code of 1954, as amended; 
and, as such agent, make all determinations and certifications required 
or provided for under the Internal Revenue Code of 1954, as amended (26 
U.S.C. 3122), and the Social Security Act, as amended (42 U.S.C. 405(p) 
(1) and (2)), with respect to DLA employees.
    8. Authorize and approve overtime work for DLA civilian personnel in 
accordance with 5 U.S.C. chapter 55, subchapter V, and applicable OPM 
regulations.
    9. Authorize and approve:
    a. Travel for DLA civilian personnel in accordance with Joint Travel 
Regulations, Volume 2, ``DoD Civilian Personnel.''
    b. Temporary duty travel for military personnel assigned or detailed 
to DLA in accordance with Joint Travel Regulations, Volume 1, ``Members 
of Uniformed Services.''
    c. Invitational travel to persons serving without compensation whose 
consultative, advisory, or other highly specialized technical services 
are required in a capacity that is directly related to, or in connection 
with, DLA activities, pursuant to 5 U.S.C. 5703.
    10. Approve the expenditure of funds available for travel by 
military personnel assigned or detailed to DLA for expenses regarding 
attendance at meetings of technical, scientific, professional, or other 
similar organizations in such instances when the approval of the 
Secretary of Defense, or designee, is required by law (37 U.S.C. 412 and 
5 U.S.C. 4110 and 4111). This authority cannot be redelegated.
    11. Develop, establish, and maintain an active and continuing 
Records Management Program, pursuant to 44 U.S.C. 3102 and DoD Directive 
5015.2, ``Records Management Program,'' September 17, 1980.
    12. Establish and use imprest funds for making small purchases of 
material and services, other than personal services, for DLA when it is 
determined more advantageous and consistent with the best interests of 
the Government, in accordance with DoD Instruction 5100.71, ``Delegation 
of Authority and Regulations Relating to Cash Held at Personal Risk 
Including Imprest Funds,'' March 5, 1973.
    13. Authorize the publication of advertisements, notices, or 
proposals in newspapers, magazines, or other public periodicals as 
required for the effective administration and operation of DLA, 
consistent with 44 U.S.C. 3702.
    14. Establish and maintain appropriate property accounts for DLA and 
appoint Boards of Survey, approve reports of survey, relieve personal 
liability, and drop accountability for DLA property contained in the 
authorized property accounts that has been lost, damaged, stolen, 
destroyed, or otherwise rendered unserviceable, in accordance with 
applicable laws and regulations.
    15. Promulgate the necessary security regulations for the protection 
of property and places under the jurisdiction of the Director, DLA, 
pursuant to DoD Directive 5200.8, ``Security of Military Installations 
and Resources,'' July 29, 1980.
    16. Establish and maintain, for the functions assigned, a 
publications system for the promulgation of common supply and service 
regulations, instructions, and reference documents, and changes thereto, 
pursuant to

[[Page 1085]]

the policies and procedures prescribed in DoD 5025.1-M, ``Department of 
Defense Directives System Procedures,'' April 1981.
    17. Enter into support and service agreements with the Military 
Departments, other DoD Components, Government Agencies, and foreign 
governments, as required for the effective performance of DLA functions 
and responsibilities.
    18. Exercise the authority delegated to the Secretary of Defense by 
the Administrator of the General Services Administration (GSA) on the 
disposal of surplus personal property.
    19. Exercise the authority and responsibility of the Secretary of 
Defense as delegated to the Director, DLA, for the National Industrial 
Equipment Reserve established by the National Industrial Equipment 
Reserve Act of 1948, as amended (50 U.S.C. 451 et seq.).
    20. Designate an officer or employee of DLA to serve as the 
Competition Advocate of the Agency, pursuant to 10 U.S.C. 2318.
    21. Maintain an official seal and attest to the authenticity of 
official DLA records under that seal.
    The Director, DLA, may redelegate these authorities as appropriate, 
and in writing, except as otherwise specifically indicated above or as 
otherwise provided by law or regulation.

                           Part 399 [Reserved]


[[Page 1087]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1089]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2005)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

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

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 1090]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 1091]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing 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 Agriculture (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 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; 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, Department of Agriculture (Parts 1800--
                2099)

[[Page 1092]]

        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (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 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 1093]]

                           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)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department 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 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

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

[[Page 1094]]

        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        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)

[[Page 1095]]

        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                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  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 1096]]

                      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 Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         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 Commissioner, 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 Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 1097]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (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 Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

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

[[Page 1098]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 1099]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 1100]]

    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 
                Education (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, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 1101]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)

[[Page 1102]]

       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (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 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 1103]]

                       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), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 1104]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)

[[Page 1105]]

        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement 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, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 1106]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 1107]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2005)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 1108]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 1109]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 1110]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 1111]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 1112]]

  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  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

[[Page 1113]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 1114]]

Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V

[[Page 1115]]

Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1117]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'', published in 
11separate volumes.

                                  2001

32 CFR
                                                                   66 FR
                                                                    Page
Chapter I
194 Removed........................................................53958
199.2 Amended; interim......................................40606, 45172
199.3 (b)(2)(i)(D), (f)(3)(vi) and (f)(3)(vii) revised; (b)(3) 
        redesignated as (b)(2)(iii)(B)(3); new (b)(3) and (4) 
        added; interim..............................................9654
    Regulation at 66 FR 9654 eff. date corrected to 4-1-01.........10367
    (b)(4) and (5) redesignated as (b)(3) and (4); interim.........16400
    199.3 (b)(2)(i)(D), (f)(3)(vi), (3)(vii) and note revised; 
interim............................................................40606
199.4 (e)(21) added; (g)(15) introductory text revised..............8366
    Regulation at 66 FR 8366 withdrawn..............................9199
    (f)(10)(ii), (iii) and note revised; (f)(11) and (g)(37)(xii) 
added; interim......................................................9655
    Regulation at 66 FR 9655 eff. date corrected to 4-1-01.........10367
199.5 (b)(1)(iii)(A) revised; interim...............................9655
    Regulation at 66 FR 9655 eff. date corrected to 4-1-01.........10367
199.8 (c)(4) added; (d)(1) revised; interim........................40607
199.10 (a)(1)(ii) revised; interim.................................40607
199.13 (c)(3)(ii)(E)(2) revised; interim............................9655
    Regulation at 66 FR 9655 eff. date corrected to 4-1-01.........10367
    Revised........................................................12860
    (c)(3)(ii)(E)(2) revised; interim..............................16400
199.14 (h)(1)(iv)(D) and (E) added.................................45172
199.15 (a)(6) revised; interim.....................................40608
199.17 (a)(6)(iii)(D) removed; (k) and (m)(5) revised; (m)(7) and 
        (n)(2)(vi) added; interim...................................9655
    Regulation at 66 FR 9655 eff. date corrected to 4-1-01.........10367
    (a) introductory text, (6)(i), (ii), (b) introductory text, 
(1), (c) introductory text, (3), (4), and (v) revised; (m)(2)(iii) 
and (4)(iii) removed; interim......................................40608
199.18 (c)(2), (3), (d) heading (1), (2)(i) through (vii), (3), 
        (e) and (g) revised; interim................................9656
    Regulation at 66 FR 9656 eff. date corrected to 4-1-01.........10367
    (d)(1) amended; interim........................................16400
199.21 Added; interim...............................................9657
    Regulation at 66 FR 9657 eff. date corrected to 4-1-01.........10367
    Removed........................................................12871
199.22 (d)(1)(i) and (5) revised; (d)(3) amended....................9658
    Regulation at 66 FR 9657 eff. date corrected to 4-1-01.........10367
230 Revised........................................................46373
231 Revised........................................................46708
231.5 (g)(5)(i) through (ix) corrected.............................54136
231.8 Heading correctly revised....................................54136
231.9 Heading, (a) through (p)(1), (2) and (q) through (cc) 
        correctly designated.......................................54136

[[Page 1118]]

231a Removed.......................................................46374
311.5 (a)(7)(ii) revised...........................................41780
311.8 (c)(7) added.................................................41780
320 Revised........................................................52681
323 Footnotes 1 through 8 revised..................................41781
323.2 (e) revised..................................................41781
323.4 (a)(1) introductory text, (2) introductory text, (3) and 
        (b)(4) revised; (a)(1)(v) added............................41781
323.5 (b)(3)(iv), (4), (5), (c)(5)(ii), (6) introductory text, 
        (i), (f)(3), (h)(6), (i)(5)(ii), (j)(5), (k), (l)(1), (2) 
        and (3) revised; (b)(3)(v) removed.........................41781
323.6 Revised......................................................41782
323 Appendices A and B amended.....................................41782
326.5 (j)(11) added................................................41783
326.17 (e) added...................................................41783
    (f) and (g) added..............................................54926

                                  2002

32 CFR
                                                                   67 FR
                                                                    Page
Chapter I
199.2 Amended......................................................18826
    (b) amended; eff. 8-12-02; interim.............................40602
199.3 (b)(2)(i)(D), (4)(iii), (f)(3)(vi) and (vii) revised.........15725
199.4 (g)(68) revised..............................................15725
    (e)(8)(ii)(D) removed; (e)(8)(iv)(C), (E), (g)(15)(i)(D) and 
(58) revised.......................................................18826
    (b)(3)(xiv) redesignated as (b)(3)(xv); new (b)(3)(xiv) and 
(e)(21) added; (c)(2)(xv) and (3)(xii) removed; eff. 8-12-02; 
interim............................................................40602
    (d)(3)(v)(A) removed; (d)(3)(v)(B), (C) and (D) redesignated 
as (d)(3)(v)(A), (B) and (C); (d)(3)(v) introductory text, new 
(A), (C) and (e)(5) revised; (e)(18)(i)(F), (G) and (21) added; 
eff. in part 7-25-02...............................................42720
    (e)(22) correctly designated...................................45311
199.5 (a)(4)(iii) revised; (a)(5)(v) added.........................18827
199.6 (a)(8)(i)(A), (B), (11)(i) and (d)(5) revised; (a)(8)(iii), 
        (b)(4)(vi)(K) and (xv) added; eff. 8-12-02; interim........40603
    (b)(4)(ii) and (iii) revised; eff. 7-25-02.....................42721
199.7 (f)(1)(ii) revised; eff. 7-25-02.............................42721
199.8 (d)(5) added.................................................18827
199.14 (h)(2) revised..............................................18115
    (b) revised; (h), (i), (j), (k) and (l) redesignated as (j), 
(k), (l), (m) and (n); (a)(5), new (h) and (i) added; eff. 8-12-
02; interim........................................................40604
199.15 (b)(4)(ii)(C) revised; eff. 7-25-02.........................42721
199.16 (d) introductory text and (2) revised; (e) and (f) 
        redesignated as (f) and (g); new (e) added; interim.........5479
199.17 (g) revised..................................................5479
    (b)(3), (c)(2)(i), (n)(1) and (o)(4) revised....................6409
199.21 Added; interim..............................................12472
199.22 (b)(1), (d)(4), (5), (f) introductory text, (1) 
        introductory text, (2), (3) and (g) revised.................4354
    (d)(1)(i) revised; (d)(1)(v) note added........................15725
220 Heading revised................................................57740
220.1 Revised......................................................57740
220.2 (a) and (b) revised..........................................57740
220.4 (c)(2)(iii) revised..........................................57740
220.8 Heading, (a), (b), (c), (e), (f), (h), (i) and (j) revised; 
        (k) and (l) removed........................................57740
220.10 (c)(1) introductory text revised............................57742
220.12 (a)(1) revised..............................................57742
220.13 (a) revised.................................................57742
220.14 Amended.....................................................57742
286.29 (b)(1) table and (d) table revised..........................31128
320.12 (b) added...................................................55724
326 Transferred to Subchapter O; interim...........................17616
326.17 (h) through (j) added.......................................17616
341 Added..........................................................42722

                                  2003

32 CFR
                                                                   68 FR
                                                                    Page
Chapter I
199.2 (b) amended..............................6618, 23032, 32361, 44880
199.3 (b)(2)(i)(D), (f)(3)(vi), (vii) and note revised.............23032
    (b)(2)(i)(D), (f)(3)(vi), (vii) and note revised...............32361

[[Page 1119]]

199.4 (a)(9) introductory text, (i)(B), (iv), (e)(16)(i) and (ii) 
        revised; (a)(9)(i)(C) and (10) removed; (a)(9)(vii) added; 
        interim....................................................44880
    (f)(2)(i)(H) added; interim....................................44883
    (a)(12)(ii)(A) revised; (a)(12)(ii)(E) added; (b)(6)(ii)(A) 
amended; interim...................................................65173
199.6 (c)(2)(v) added; interim.....................................65174
199.7 (a)(7)(i) revised; interim...................................44881
199.8 (a), (c)(1) and (d)(3) revised; (b)(3), (c)(2) and (3) 
        redesignated as (b)(4), (c)(4) and (5); new (b)(3), (c)(2) 
        and (3) added...............................................6618
    (c)(4) in part and (5) redesignated as (c)(5) and (6); (d)(1) 
revised............................................................23032
    (c)(6) and (d)(1) revised......................................32361
199.10 (b) introductory text and (c) revised; interim..............11973
    Regulation at 68 FR 11973 eff. date correctly added............15372
    (a)(1)(ii) revised......................................23033, 32362
199.12 Revised......................................................6619
199.13 (c)(3)(ii)(E)(2) revised; interim...........................65174
199.15 (a)(6) revised.......................................23033, 32363
    (b)(4)(i) revised; (b)(4)(ii)(D) added; interim................44881
199.17 (a) introductory text, (6) introductory text, (i), (ii), 
        (b) introductory text, (1), (c) introductory text, (3), 
        (4) and (v) revised.................................23033, 32363
    (n)(2)(ii) revised; interim....................................44881
    (g)(3), (o) introductory text and (2) revised; interim.........44883
199.23 Added; interim..............................................43300
207 Added; interim.................................................27905
254 Removed.........................................................6082
285.1 Revised.......................................................8825
285.3 (e) revised...................................................8825
285.4 (a) revised; (a)(4) removed; (b) and (c) redesignated as (c) 
        and (d); new (b) added; new (d)(1) revised..................8825
285.5 Revised.......................................................8825
299 Revised; interim...............................................28132
311.8 (c)(12) and (13) added........................................8722
    (c)(14) added..................................................24881
312.1 Revised......................................................37969
312.3 Revised......................................................37969
312.9 (a) revised..................................................37969
312.12 (h) added...................................................37969
322 Revised........................................................28757
342 Removed........................................................74861
348 Removed........................................................74861
350 Removed........................................................74861
353 Removed........................................................74861
363 Removed........................................................74861
364 Removed........................................................74861
365 Removed........................................................74861
366 Removed........................................................74861
367A Removed.......................................................74861
368 Removed........................................................74861
369 Removed........................................................74861
370 Removed........................................................74861
373 Removed........................................................74861
376 Removed........................................................74861
377 Removed........................................................74861
380 Removed........................................................74861
381 Removed........................................................74861
382 Removed........................................................74861
384 Removed........................................................74861
385 Removed........................................................74861
386 Removed........................................................74861
387 Removed........................................................74861
391 Removed........................................................74861
394 Removed........................................................74861
396 Removed........................................................74861
399 Removed........................................................74861

                                  2004

32 CFR
                                                                   69 FR
                                                                    Page
Chapter I
199.2 (b) amended....................................17048, 44946, 60554
    (b) corrected..................................................51563
199.3 (b)(2)(iii)(A)(1), (c)(2)(i)(C), (ii)(B), (iii)(B), 
        (3)(i)(C), (ii)(B), (4)(i)(B), (ii)(B), (iii)(B), 
        (5)(i)(C), (ii)(B), (iii)(B), (iv)(C)(2), (6)(ii), 
        (7)(i)(C), (ii)(B), (8)(ii), (9)(i)(B), (ii)(B), and 
        (10)(ii) amended...........................................44947
     (b)(2)(iii)(A)(1), (c)(2)(i)(C), (ii)(B), (iii)(B), 
(3)(i)(C), (ii)(B), (4)(i)(B), (ii)(B), (iii)(B), (5)(i)(C), 
(ii)(B), (iii)(B), (iv)(C)(2), (6)(ii), (7)(i)(C), (ii)(B), 
(8)(ii), (9)(i)(B), (ii)(B), and (10(ii) corrected.................51564
    (e) revised....................................................60554
199.4 (e)(18)(iv) revised..........................................29229
    (e)(20) and (i) removed; (g)(59) added; (g)(73) revised........44947
    (g)(59) and (73) revised.......................................51564
    (a)(12)(ii)(A) and (E) revised; (b)(6)(iii)(A) amended.........55359

[[Page 1120]]

    (d)(3)(ii)(A), (vii), (g)(41) text preceding note, (47) and 
(51) revised; (e)(23), (24) and (25) added; (g)(45) removed........60554
199.5 Revised......................................................44947
    Heading revised................................................51563
    Correctly revised..............................................51564
199.6 (c)(3)(iii)(I) redesignated as (c)(3)(iii)(K); new 
        (c)(3)(iii)(I) and (J) added...............................29229
    Heading, (e)(1)(ii), (2) and (3) revised................44951, 51568
    (c)(2)(v) revised..............................................55359
199.7 (a)(2) and (b)(2)(xii) revised........................44952, 51569
199.8 (d)(4) and (5) revised................................44952, 51569
199.10 (a)(8)(ii)(A) and (B) redesignated as (a)(8)(ii)(A), (B) 
        and (C); (b) introductory text revised......................6920
199.13 (c)(3)(ii)(E)(2) revised....................................55359
199.14 (k) through (n) redesignated as (l) through (o); new (k) 
        added......................................................60555
199.20 (p)(2)(i) revised....................................44952, 51569
199.21 Revised.....................................................17048
199.23 Revised.....................................................15678
199 Appendix A amended.............................................44952
    Appendix A corrected...........................................51569
260 Removed........................................................42115
282 Added..........................................................38843
299 Regulation at 68 FR 28132 confirmed............................12975
312.8 (a) revised...................................................7366
312.12 (b) revised; (i) added.......................................7366
320 Heading revised.................................................2066
320.1 (a)(1)(i) and (2) amended.....................................2066
320.2 (a), (c), (f), (h) and (i) amended............................2066
320.3 (a) introductory text, (1), (2), (4), (b)(6) and (c)(4) 
        amended.....................................................2066
320.4 (a), (b), (c) introductory text, (2), (d) and (e) amended.....2066
320.5 (a), (b) introductory text, (1), (2), (3), (c) introductory 
        text, (1), (2) and (d)(1) amended...........................2066
320.6 (b) amended...................................................2066
320.7 (a) and (b) amended...........................................2066
320.8 (b), (c) introductory text and (1) amended....................2066
320.9 (a), (c)(5) and (7) amended...................................2066
320.10 Amended......................................................2066
320.11 Amended......................................................2066
320.12 (a), (b)(3)(i), (v) and (vi) amended.........................2066
322.7 (q) added....................................................62408

                                  2005

   (Regulations published from January 1, 2005, through July 1, 2005)

32 CFR
                                                                   70 FR
                                                                    Page
Chapter I
199.2 (b) amended; interim.........................................12802
199.3 (b)(5) added; (e) revised; interim...........................12802
199.4 (f)(2)(vi) added; interim....................................12802
199.7 (a)(7)(i) revised............................................19265
199.15 (b)(4)(i)(B) and (ii)(D) revised............................19266
199.17 (n)(2)(ii)(B) revised.......................................19266
199.24 Added; interim..............................................12802
219.101 (i) and Footnote 1 amended.................................36328
219.103 (a) and (b)(3) amended; OMB number.........................36328
219.109 OMB number.................................................36328
219.110 (a) amended................................................36328
219.113 OMB number.................................................36328
219.115 OMB number.................................................36328
219.116 OMB number.................................................36328
219.117 OMB number.................................................36328
311.8 (c)(15) added; eff. 7-15-05..................................34657
321.13 (h) added...................................................38009


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